LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 

Class 


POPULAR    LAW-MAKING 


POPULAR  LAW-MAKING 

A  STUDY  OF  THE  ORIGIN, 

HISTORY,  AND  PRESENT  TENDENCIES 

OF  LAW-MAKING  BY  STATUTE 


BY 
FREDERIC  JESUP  STIMSON 

PROFESSOR     OF    COMPARATIVE     LEGISLATION    IN 
HARVARD    UNIVERSITY 


"NOW,  MY  LORD,  I   DO  THINK,  THAT  PRACTICE  AND  USAGE  IS  A  GREAT 

EVIDENCE  OF  THE   LAW." — CHIEF  JUSTICE   HOLT,    IN    "THE 

GREAT  CASE  OF  MONOPOLIES." — 7  STATE  TRIALS,  497 


NEW  YORK 

CHARLES  SCRIBNER'S  SONS 
1910 


Jf 


3*2- 


UbMEHIU. 


COPYRIGHT,  1910,  BY 
CHARLES  SCRIBNER'S  SONS 

Published  October,  1910 


TABLE  OF  CONTENTS 


I.    THE  ENGLISH  IDEA  OF  LAW 


Proper  Field  of  Legislation,  2;  Meaning  of  the  Word 
"Law,"  2;  Modern  Importance  of  Statute  Law, 
3;  Representative  Government  and  the  Right  to 
Law,  3;  Enforcement  of  the  Common  Law,  4; 
Origin  of  Representative  Legislatures,  5;  Custom- 
ary or  Natural  Law,  6;  No  Sanction  Necessary, 
7;  The  Unwritten  Law  and  Outlawry,  8;  Early 
Parliament  Merely  Judicial,  9;  Contrast  of  Com- 
mon Law  with  Roman  Law,  10;  Theory  that 
the  King  Makes  Law,  11;  Parliament  Retains 
the  Right  to  Tax,  12;  Parliament  Recovers  Leg- 
islative Powers,  13. 

II.    EARLY  ENGLISH  LEGISLATION  AND  MAGNA 

CHARTA 15 

Constructive  Legislation  a  New  Idea,  15;  Statutes 
Increase  of  Late  Years,  16;  Sociological  Legisla- 
tion only  Considered,  16;  Early  Legislation  Politi- 
cal, 17;  English  Law  not  Codified,  18;  Early  An- 
glo-Saxon Laws,  19;  Freedom  Gained  in  Guilds, 
20;  Threefold  Division  of  Government,  21; 
No  Constitution  Controls  Parliament,  22;  Resto- 
/ation  of  English  Law  After  the  Conquest,  24; 
Taxation  by  Common  Consent,  25;  Earliest  Social 
Statute,  25;  Recognition  of  Personal  Property, 
25;  Law  of  Land  Tenure,  27;  The  Charter  of 
Liberties,  27;  Early  Methods  of  Trial,  28;  Dis- 
tinction Between  Sin  and  Crime,  29;  Church  Law 
Governs  Sin,  30;  Important  Clauses  of  Magna 
Charta,  32;  Freedom  of  Trade,  33;  Taxation  for 


204832 


vi  CONTENTS 


the  Common  Benefit,  34;  The  Great  "Liberty" 
Clause,  35;  "Administrative"  Law  not  English, 
36;  No  Government  Above  Law,  37. 

III.  RE-ESTABLISHMENT  OF  ANGLO-SAXON  LAW  .      38 

Common  Law  Against  Civil  Law,  39;  "We  Are 
Unwilling  to  Change  the  Laws  of  England,"  40; 
Usury  and  the  Jews,  41;  Towns  Represented  in 
Parliament,  42;  The  Fixing  of  Prices,  43;  Sumpt- 
uary Laws,  44;  The  Benefit  of  Clergy,  45;  Partial 
Codification,  46;  The  Statute  of  Westminster  I, 
47;  Law  Extended  to  All  People,  47;  Labor  Makes 
Men  Free,  47;  The  Freedom  of  Elections,  47; 
"Cruel  and  Unusual  Punishment,"  48;  Sexual 
Offences  Made  Secular  Crimes,  48;  Earliest  Duties 
on  Imports,  49;  Early  Duties  on  Wool,  49;  The 
Law  of  Wrecks,  50. 

IV.  EARLY    LABOR    LEGISLATION,    AND    LAWS 

AGAINST  RESTRAINT  OF  TRADE  AND 
"TRUSTS" 52 

Extortion  and  Discrimination,  52;  Forestalling,  Re- 
grating,  Engrossing,  53;  The  Statute  of  Bakers, 
54;  Origin  of  Law  of  Conspiracy,  54;  The  Law  of 
Combination,  55;  The  Modern  Definition,  56; 
Combinations  Against  Individuals,  57;  Intent 
Makes  the  Guilt,  59;  Conspiracy  More  Heinous 
than  the  Act  Committed,  59;  Combinations  to  In- 
jure Trade,  60;  Individual  Injuries  to  Business, 
61;  Definition  of  Forestalling,  62;  "The  Iowa 
Idea,"  63;  The  Statutes  of  Labor,  64;  First  Stat- 
ute of  Laborers,  65;  A  Fixed  Wage,  66;  Early 
Law  of  Strikes,  67;  Early  Law  of  Trades-Unions, 
68;  Labor  Conditions  in  Early  Times,  69;  Combi- 
nations to  Fix  Prices,  70;  Unlawful  By-Laws 
of  Unions,  70;  Restraint  of  Trade,  70;  The  Right 
to  Labor,  71;  The  Earliest  Boycott,  71;  Origin  of 
the  Injunction  in  Labor  Cases,  74;  The  Common 
Law  Vindicated,  75;  Compulsory  Labor  in  Eng- 
land, 76;  Free  Trade  to  Merchants,  77;  Jealousy  of 
Chancery  Power,  79;  Guilds  and  Corporations,  79; 


CONTENTS  vii 

CHAPTER  PAGE 

Chancery  and  the  Star  Chamber,  80;  By-Laws 
Tending  to  Monopoly,  81;  Hours  of  Labor 
Laws,  81;  Idlers  and  Vagabonds,  82;  Trusts  and 
Labor  Combinations,  83;  Riots  and  Assemblies, 
84;  The  Statute  of  Elizabeth,  85;  Early  Labor 
Regulations,  85;  The  First  Poor  Law,  86;  The 
First  Complaint  of  Monopolies,  86;  Growth  of 
Monopolies,  87;  The  Statute  of  Monopolies,  88; 
The  Impeachment  of  Monopolists,  89. 

V.    OTHER  LEGISLATION    IN  MEDIEVAL  ENG- 
LAND     90 

The  Statute  of  Mortmain,  90;  The  Law  Merchant, 
91;  Origin  of  Habeas  Corpus,  92;  Earlv  Police 
Regulation,  93;  Opposition  to  Customs  Duties, 
94;  Interpretation  of  the  Great  Charter,  95; 
Statute  Against  Chancery  Jurisdiction,  96;  Early 
Tariffs  on  Wool,  97;  The  English  Language  Re- 
places French,  98;  Freedom  of  Trade  at  Sea,  98; 
Laws  of  the  Staple,  99;  Early  Food  Laws  For- 
bidding Trusts,  etc.,  100;  The  Statutes  of  Dog- 
ger, 101;  Department  Stores  and  Double  Trading, 
102;  Freedom  of  Trade  Restored,  103;  Jealousy 
of  the  Roman  Law,  104;  Laws  Against  Scotch, 
Welsh,  and  Irish,  105;  Injunctions  Issued  Against 
Seduction,  106;  The  First  Statute  of  Limitations, 
107;  Personal  Government  Under  Henry  VIII, 
108;  Laws  Against  Middlemen,  109;  Final  Defi- 
nitions of  Forestalling,  Regrating,  Engrossing, 
110;  The  First  Poor  Law  and  Forestry  Law,  110; 
The  First  Trading  Corporations,  110;  The  Heresy 
Statutes,  111;  James  I,  Legislation  Against  Sins, 
112;  Cromwell's  Legislation,  113;  The  First  Busi- 
ness Corporation,  114;  Corporations  Invented  to 
Gain  Monopoly,  115;  Growth  of  the  Trade  Guilds, 
115;  Veterans'  Preference  Legislation,  116. 

VI.    AMERICAN  LEGISLATION  IN  GENERAL  .    .    .    117 

Early  Increase  of  State  Legislation,  119;  The  State 
Constitutions,  120;  When  Statutes  Should  Be 


CONTENTS 


for  Child  Labor,  224;  Dangerous  and  Immoral 
Trades,  225;  Protection  of  Young  Girls,  225; 
Labor  in  Mines,  225;  Hours  of  Labor  in  Peculiar 
Trades,  226;  The  Constitutional  Difficulty,  227; 
Farms  and  Domestic  Labor,  228;  Continental 
Legislation,  228;  Sanitary  Restrictions  on  Fe- 
male Labor,  229;  Sweatshop  Laws,  230;  The 
Factory  Acts,  234;  Employers'  Liability,  235; 
Anti-Truck  Legislation,  236;  Factory  Stores  and 
Dwellings,  237;  Benefit  Funds  and  Compulsory 
Insurance,  238;  The  Regime  of  Contract,  239; 
Compulsory  Labor  and  Peonage,  240;  Statutes 
Against  Intimidation,  243;  Blacklists,  Picketing, 
Armed  Guards,  244;  Political  and  Militia  Duties, 
244;  Miscellaneous  Matters,  Profit-Sharing,  etc., 
245;  Discrimination  Against  Union  Labor,  246; 
Twenty  Years  of  Labor  Legislation,  247;  Foreign 
Labor  Legislation,  252;  Employers'  Liability,  252; 
Old  Age  Pensions,  253;  Minimum  Wage  Laws,  255; 
Co-operation  and  Profit-Sharing,  255;  Arbitra- 
tion Laws,  256;  Labor  Legislation  in  Europe,  258. 

XII.    COMBINATIONS  IN  LABOR  MATTERS  ....    263 

The  Law  of  Combination  and  Conspiracy,  263;  In- 
tent the  Test,  265;  The  English  Conspiracy  Act, 
267;  Modern  Reforms  Desired  by  Organized 
Labor,  269;  Boycotts  and  Blacklists,  269;  In- 
timidation, 269;  Interference  with  Political 
Rights,  270;  The  Oklahoma  Labor  Code,  270; 
European  Law  of  Combination,  272. 


XIII.    MILITARY  AND  MOB  LAW,  AND  THE  RIGHT 

TO  ARMS 275 

The  Right  to  Civil  Law,  275;  Martial  Law,  276; 
Military  Law,  277;  The  Right  to  Arms,  277;  Mil- 
itary Service,  277;  The  Struggle  Against  Martial 
Rule  in  England,  279;  Standing  Armies,  280; 
Mobs,  Riots,  Lynching,  281;  The  Use  of  the 
Army  in  Labor  Troubles,  283. 


CONTENTS  xi 

CHAPTER  PAGE 

XIV.    OF  POLITICAL  RIGHTS 284 

The  Right  to  Assembly  and  Free  Elections,  284; 
The  Suffrage,  285;  The  Force  Bills,  285;  Inter- 
ference with  Voting,  286;  Bribery  and  Corrupt 
Practices,  286;  Lobbying  Acts,  287;  The  Form 
of  the  Ballot,  287;  Direct  Primaries  and  Nomina- 
tions, 288;  The  Distrust  of  Representative  Gov- 
ernment, 290;  Corrupt  Elections  Laws,  291;  Di- 
rect Election  of  U.  S.  Senators,  291;  Women's 
Suffrage,  293;  Municipal  Elections,  The  Initia- 
tive, Referendum,  and  Recall,  297;  The  Judicial 
System,  299. 

XV.    OTHER  LEGISLATION  AFFECTING  INDIVIDUAL 

RIGHTS 301 

Freedom  of  Speech  and  of  the  Press,  301;  The 
"Unfair"  List,  302;  Prohibition  of  Anarchistic 
Propaganda,  303;  The  Right  to  Privacy,  303; 
Search  Warrants  and  Self-Incrimination,  304; 
The  Immunity  of  Witnesses,  305;  Corporate  Im- 
munity, 305;  Religious  Rights,  306. 

XVI.    LEGISLATION    CONCERNING   PERSONAL   AND 

RACIAL  RIGHTS 308 

The  Race  Question,  308;  Races  Capable  of  Citizen- 
ship, 309;  The  War  Amendments  and  Their 
Effect,  310;  The  Negro's  Social  and  Property 
Rights,  313;  The  Privileged  Classes,  315. 


XVII.    SEX  LEGISLATION,  MARRIAGE  AND  DIVORCE    317 

A  Woman  Is  a  Citizen,  317;  Her  Right  to  Labor 
and  Property,  318;  Marriage,  Divorce,  and  Chil- 
dren, 319;  Women  in  Politics  and  Education, 
321;  Reform  of  Divorce  Procedure,  322;  Uni- 
formity of  Law  in  Divorce,  323;  The  Secular  Law 
in  Sexual  Matters,  324;  Marriage  a  Contract,325; 
The  "Single  Standard"  and  Free  Divorce,  326; 
Control  of  Marriage  by  the  State,  327;  Recent 


XII 

CHAPTER 


CONTENTS 


Legislation,  328;  Radical  Statutes  in  Sexual 
Matters,  330;  Legal  Separation,  330;  The  Mar- 
ried Woman's  Privileges,  331;  The  "Age  of  Con- 
sent," 332;  Female  Suffrage  by  Property-Own- 
ers, 332;  Kidnapping,  Curfew,  Rape,  333;  Sta- 
tistics of  Divorce,  334;  Industrial  Liberty  of 
Women,  336;  Female  Labor  in  England  and 
U.  S.  A.,  337. 


PAGE 


XVIII.    CRIMINAL  LAW  AND  POLICE 


339 


Common  Law  Prevails,  339;  New  Crimes  and  Pen- 
alties, 339;  Self-Regardant  Actions,  339;  Reform 
in  Punishment,  339;  Procedure  in  the  Courts, 
339;  Lynching  and  Mob  Law,  340;  Interstate 
Commerce  in  Liquor,  etc.,  340;  Physicians'  Priv- 
ilege, 341;  Prohibition  Laws,  342;  City  Ordin- 
ances, 343;  Juvenile  Courts  and  Laws,  343; 
Present  Needs,  344. 

XIX.    OF  THE  GOVERNMENTAL  FUNCTION,  INTERNAL 
IMPROVEMENTS,  AND  THE  PUBLIC  DOMAIN 

Government  by  Commission,  345;  Taxes,  Debt,  and 
Franchises,  346;  Municipal  Socialism,  347;  Inter- 
nal Improvements,  348;  State  Farms  and  Forests, 
348;  Education,  349;  Taxation  and  State  Aid, 
351;  Present  Questions,  352. 


345 


XX.      FINAL 353 

The  Form  of  Our  Statutes,  353;  Need  of  Authorized 
Revisions,  354;  Reforms  Recommended,  357;  In- 
dexing and  Arrangement,  359;  Need  of  a  Parlia- 
mentary Draughtsman,  362;  Recommendations  of 
the  State  Librarians,  363;  Purpose  of  this  Book, 
364. 


INDEX  367 


POPULAR    LAW-MAKING 


OF   THE 

UNIVERSITY 

OF 


POPULAR    LAW-MAKING 


THE  ENGLISH  IDEA  OF  LAW 

My  object  in  the  lectures  upon  which  this  work  is  based 
was  to  give  some  notion  of  the  problems  of  the  time  (in  this 
country,  of  course,  particularly)  which  are  confronting  leg- 
islators primarily,  political  parties  in  the  second  place,  but 
finally  all  good  citizens.  The  treatment  was  as  untechnical 
as  possible.  The  lectures  themselves  were  for  men  who 
meant  to  go  into  business,  for  journalists,  or  political 
students;  a  general  view — an  elemental,  broad  general  view 
— of  the  problems  that  confront  legislation  to-day.  So  is 
the  book  not  one  for  lawyers  alone;  it  seeks  to  cover  both 
what  has  been  accomplished  by  law-making  in  the  past,  and 
what  is  now  being  adopted  or  even  proposed ;  jthe_history  of 
stojiitesjrf_lggjsj_a.t-io"  by  thft  pe^le  as  distinct  fromj\j udge- 
made"  la^wjjigwjarjegislatures  can  cure  the_eyjls  that  con- 
front the  state  or  the  individual,  and  what,  tfae  fnf.m»-flf — 
American  legislation  is  likely  to  be.  Constitutional  difficul- 
ties I  had  merely  mentioned,  as  there  was  another  course 
of  lectures  on  American  constitutional  principles,  which 
supplemented  it.1  In  those  I  tried  to  show  what  we  cannot 
do  by  legislation;  in  these  I  merely  discussed  what  had  been 
done,  and  tried  to  show  what  we  are  now  doing.  What 
we  may  not  do  may  sound,  perhaps,  like  a  narrow  field; 
but  the  growth  of  constitutional  law  in  this  country  is  so 

»  "The  Law  of  the  Federal  and  State  Constitutions  of  the  United  States," 
Boston  Book  Company,  1908.  "The  American  Constitution,"  Scribners, 
New  York,  1907. 

1 


2  POPULAR  LAW-MAKING 

wide — in  the  first  place  including  all  the  English  Consti- 
tution, and  more  than  that,  so  many  principles  of  human 
liberty  that  have  been  adopted  into  our  Constitution,  either 
at  the  time  it  was  adopted,  or  which  have  crept  into  it 
through  the  Fourteenth  Amendment,  with  ah*  the  innovations 
of  State  constitutions  as  well — that  really  the  discussion  of 
what  cannot  be  done  by  statute  takes  one  almost  over  the 
entire  range  of  constitutional  law  and  even  into  the  discus- 
sion of  what  cannot  be  done  in  a  free  country  or  under  or- 
dinary principles  of  human  liberty. 

How  many  of  us  have  ever  formulated  in  our  minds  what 
lav  means?  I  am  inclined  to  think  that  the  most  would 
give  a  meaning  that  was  never  the  meaning  of  the  word  law, 
at  least  until  a  very  few  years  ago;  that  is,  the  meaning  which 
alone  is  the  subject  of  this  book,  statute  law.  The  notion  of 
law  as  a  statute,  a  thing  passed  by  a  legislature,  a  thing  en- 
acted, made  new  by  representative  assembly,  is  perfectly 
modern,  and  yet  it  has  so  thoroughly  taken  possession  of 
our  minds,  and  particularly  of  the  American  mind  (owing 
to  the  forty-eight  legislatures  that  we  have  at  work,  besides 
the  National  Congress,  every  year,  and  to  the  fact  that  they 
try  to  do  a  great  deal  to  deserve  their  pay  in  the  way  of 
enacting  laws),  that  statutes  have  assumed  in  our  minds  the 
main  bulk  of  the  concept  of  law  as  we  formulate  it  to  our- 
selves. I  guess  that  the  ordinary  newspaper  reader,  when 
he  talks  about  "laws"  or  reads  about  "law,"  thinks  of  stat- 
utes; but  that  is  a  perfectly  modern  concept;  and  the  thing 
itself,  even  as  we  now  understand  it,  is  perfectly  modern. 
There  were  no  statutes  within  the  present  meaning  of  the 
word  more  than  a  very  few  centuries  ago.  But  statutes  are 
precisely  the  subject  of  this  book;  legislation,  the  tendency 
of  statute-making,  the  spirit  of  statutes  that  we  have  made, 
that  we  are  making,  and  that  we  are  likely  to  make,  or  that 
are  now  being  proposed;  so  it  is  concerned,  in  a  sense,  with 
die  last  and  most  recent  and  most  ready-made  of  all  legal 
or  political  matters.  The  subject  of  statute-making  is  not 


MEANING  OF  THE  WORD  LAW  3 

thought  difficult;  it  is  supposed  to  be  perfectly  capable  of 
discussion  by  any  one  of  our  State  legislators,  with  or  without 
legal  training;  and  sometimes  with  lamentable  consequences. 
For  the  subject  is  of  the  most  immense  importance,  now  that 
the  bulk  of  all  our  law  is,  or  is  supposed  to  be,  statutes. 

In  order  to  understand,  therefore,  what  a  statute  is,  and 
why  it  has  grown  important  to  consider  statute-making,  it 
is  necessary  to  have  some  knowledge  of  the  meaning  of  the 
word  law,  and  of  the  origin  both  of  representative  govern- 
ment and  of  legislatures,  before  we  come  to  statutes,  as  we 
understand  them;  for  parliaments  existed  centuries  before 
they  made  statutes  as  we  now  use  this  word.  Statutes  with  us 
are  recent;  legislatures  making  statutes  are  recent  every- 
where; legislatures  themselves  are  fairly  recent;  that  is,  they 
date  only  from  the  end  of  the  Dark  Ages,  at  least  in  Anglo- 
Saxon  countries.  Representative  government  itself  is  sup- 
posed, by  most  scholars,  to  be  the  one  invention  that  is 
peculiar  to  the  Anglo-Saxon  people. 

And  there  is  another  invention — if  we  can  call  it  one — to 
my  mind  of  far  greater  importance,  which  I  should  urge  was 
also  peculiar  to  the  Anglo-Saxon  people;  that  is,  the  inven- 
tion or  the  idea  of  personal  liberty;  which  is  understood, 
and  always  has  been  understood,  by  Anglo-Saxons  in  a  sense 
in  which  it  never  existed  before,  so  far  as  I  know,  in  any 
people  in  the  history  of  the  world.  It  is  that  notion  of  per- 
sonal liberty  which  was  the  cause  of  representative  govern- 
ment, not  representative  government  that  was  the  cause  of 
personal  liberty.  In  other  words,  the  people  did  not  get  up 
a  parliament  for  the  sake  of  having  that  parliament  enact 
laws  securing  personal  liberty.  It  was  the  result  of  a  condi- 
tion of  personal  liberty  which  prevailed  among  them  and  in 
their  laws  that  resulted  in  representative  government,  and 
in  the  institution  of  a  legislature,  making,  as  we  now  would 
say,  the  laws;  though  a  thousand  years  ago  they  never  said 
that  a  legislature  made  laws,  they  only  said  that  it  told  what 
the  laws  were.  This  is  another  very  important  distinction. 


4  POPULAR  LAW-MAKING 

The  "law"  of  the  free  Anglo-Saxon  people  was  regarded  as 
a  thing  existing  by  itself,  like  the  sunlight,  or  at  least  as  exist- 
ing like  a  universally  accepted  custom  observed  by  every  one. 
It  was  five  hundred  years  before  the  notion  crept  into  the 
minds,  even  of  the  members  of  the  British  Parliaments,  that 
they  could  make  a  new  law.  What  they  supposed  they  did, 
and  what  they  were  understood  by  the  people  to  do,  was 
merely  to  declare  the  law,  as  it  was  then  and  as  it  had  been 
from  time  immemorial;  the  notion  always  being — and  the 
farther  back  you  go  and  the  more  simple  the  people  are,  the 
more  they  have  that  notion — that  their  free  laws  and  customs 
were  something  which  came  from  the  beginning  of  the  world, 
which  they  always  held,  which  were  immutable,  no  more 
to  be  changed  than  the  forces  of  nature;  and  that  no  parlia- 
ment, under  the  free  Anglo-Saxon  government,  or  later  under 
the  Norman  kings,  who  tried  to  make  them  unfree,  no  king, 
could  ever  make  a  law,  but  could  only  declare  what  the  law 
was.  The  Latin  phrase  for  that  distinction  is  jus  dare,  and 
jus  dicere.  In  early  England,  in  Anglo-Saxon  times,  the 
Parliament  never  did  anything  but  tell  what  the  law  was; 
and,  as  I  said,  not  only  what  it  was  then,  but  what  it  had  been, 
as  they  supposed,  for  thousands  of  years  before.  The  notion 
of  a  legislature  to  make  new  laws  is  an  entirely  modern  con- 
ception of  Parliament.  How  did  it  arise?  The  English 
Parliament,1  as  you  doubtless  know,  was  the  successor,  or 
grew  out  of  the  old  Witenagemot,  the  old  Saxon  Great  Coun- 
cil, and  that  Great  Council  originally — and  I  am  now  talking 
of  centuries  before  the  Conquest — the  Witenagemot,  in- 
cluded in  theory  all  the  free  inhabitants  of  the  realm,  just  as 
a  modern  town  meeting  does.  Mind  you,  they  were  then 
tribes,  living  in  "Hundreds."  They  were  not  nations,  not 
even  states  and  counties,  and  in  early  times  it  probably  was 
possible  to  have  a  popular  assembly  which  should  include 
at  least  all  the  warriors,  all  the  fighting  men,  and  consequently 

»  Gneist,  "The  English  Parliament,"  and  Skottowe,  "History  of  Parlia- 
ment," perhaps  best  summarize  this  view. 


ORIGIN   OF  REPRESENTATIVE  LEGISLATURES       5 

all  the  men  whose  votes  counted.  No  man  who  could  not 
fight  could  share  in  the  government — an  historical  fact  which 
our  suffragists  tend  to  ignore  when  they  talk  of  "rights." 
The  Witenagemot,  undoubtedly,  was  originally  a  universal 
assembly  of  the  tribe  in  question.  But  as  the  tribes  got 
amalgamated,  were  associated  together,  or  at  least  localized 
instead  of  wandering  about,  and  particularly  when  they  got 
localized  in  England — where  before  they  had  been  but  a 
roaming  people  on  account  of  their  struggles  with  the  Brit- 
ons— the  necessity  of  greater  organization  probably  became 
obvious  to  them  at  once,  and  the  Witenagemot  readily  as- 
sumed a  somewhat  more  formal  form;  and  that  resulted  in 
representation.  For  we  are  talking  of  early  England;  that 
is,  of  the  eastern  half  of  what  is  now  England,  the  Saxon 
part;  obviously  you  couldn't  put  all  the  members  even  of 
East  Anglia  in  one  hall  or  in  one  field  to  discuss  laws,  so  they 
invented  representation.  All  the  authorities  appear  to  be 
agreed  that  there  is  no  prototype  for  what  seems  to  us  such 
a  very  simple  thing  as  representation,  representative  govern- 
ment, among  the  Greeks  or  the  Romans,  or  any  of  the  older 
civilizations  of  which  we  have  knowledge.  It  is  very  sur- 
prising that  it  is  so,  and  I  am  always  expecting  that  some  one 
will  discover,  either  in  the  Achaian  League  or  somewhere, 
that  it  is  not  so,  that  there  is  a  prototype;  but  there  doesn't 
seem  to  be  any  regular  system  of  representative  government 
until  you  get  to  Anglo-Saxon  peoples.  So  that  was  the 
second  stage  of  the  Witenagemot,  and  then  it  properly  begins 
to  be  called  the  Great  Assembly  or  Council  of  the  people. 
This  representative  assembly  was  then  not  only  legislative, 
it  was  also  executive,  to  some  extent,  and  entirely  judicial; 
for  we  are  a  thousand  years  before  the  notion  of  the  threefold 
division  of  government  has  occurred  to  any  one.  The  early 
Saxon  Witenagemot,  as  later  the  Norman  kings  tried  to,  did 
unite  all  three  functions  in  themselves.  Their  main  function 
was  judicial;  for  the  reason  that  there  was  very  little  notion 
as  yet  of  legislation,  in  a  people  or  tribe  whose  simple  customs 


6  POPULAR  LAW-MAKING 

and  simple  property  demanded  very  few  laws,  where  the 
first  remedy  for  any  man  for  any  attack  on  his  family  or 
property  was  the  remedy  of  his  own  good,  right  hand.  When 
you  really  only  got  into  a  lawsuit,  at  least  as  concerning 
property,  as  a  result  of  a  killing  of  somebody  or  other,  albeit 
in  defence  of  one's  own  chattels,  it  is  obvious  that  there 
need  not  be  much  legislation;  the  laws  were  too  well  known, 
the  unwritten  law  too  well  enforced.  It  probably  would 
have  surprised  the  early  Englishman  if  he  had  been  told  that 
either  he  or  anybody  else  didn't  know  the  law — still  more 
that  there  was  ever  any  need  for  any  parliament  or  assembly 
to  tell  him  what  it  was.  They  all  knew  the  law,  and  they  all 
knew  that  they  knew  the  law,  and  the  law  was  a  thing  that 
they  knew  as  naturally  as  they  knew  fishing  and  hunting. 
They  had  grown  up  into  it.  It  never  occurred  to  them  as  an 
outside  thing. 

So  it  has  been  found  that  where  you  take  children,  modern 
children,  at  least  boys  who  are  sons  of  educated  parents,  and 
put  them  in  large  masses  by  themselves,  they  will,  without 
apparently  any  reading,  rapidly  invent  a  notion  of  law;  that 
is,  they  will  invent  a  certain  set  of  customs  which  are  the 
same  thing  to  them  as  law,  and  which  indeed  are  the  same 
as  law.  They  have  tried  in  Johns  Hopkins  University  ex- 
periments among  children,  to  leave  them  entirely  alone,  with- 
out any  instruction,  and  it  is  quite  singular  how  soon  customs 
will  grow  up,  and  it  is  also  quite  singular  and  a  thing  that 
always  surprises  the  socialist  and  communist,  that  about  the 
earliest  concept  at  which  they  will  arrive  is  that  of  private 
property!  They  will  soon  get  a  notion  that  one  child  owns 
a  stick,  or  toy,  or  seat,  and  the  others  must  respect  that 
property.  This  I  merely  use  as  an  illustration  to  show  how 
simple  the  notion  of  law  was  among  our  ancestors  in  England 
fifteen  hundred  years  ago,  and  how  it  had  grown  up  with 
them,  of  course,  from  many  centuries,  but  in  much  the  same 
way  that  the  notion  of  custom  or  law  grows  up  among  children. 
The  English  had  acquired  naturally,  but  with  the  tradition 


NO  SANCTION   NECESSARY  7 

of  centuries,  the  notion  of  law  a  sexisting;  and  that  brings 
us  to  the  next  point. 

Here  again  we  are  so  confused  with  our  modern  notions  of 
law  that  it  is  very  important  not  to  be  misled  by  them  at 
the  beginning.  I  am  quite  sure  that  all  the  American  peo- 
ple when  they  think  of  law  in  the  sense  I  am  now  speaking 
of,  even  when  they  are  not  thinking  necessarily  of  statute  law, 
do  mean,  nevertheless,  a  law  which  is  enforced  by  somebody 
with  power,  somebody  with  a  big  stick.  They  mean  a  law, 
an  ordinance,  an  order  or  dictate  addressed  to  them  by  a 
sovereign,  or  by  at  least  a  power  of  some  sort;  and  they 
mean  an  ordinance  which  if  they  break  they  are  going  to 
suffer  for,  either  in  person  or  in  property.  In  other  words, 
they  have  a  notion  of  law  as  a  written  command  addressed 
by  the  sovereign  to  the  subject,  or  at  least  by  one  of  the 
departments  of  government  to  the  citizen.  Now,  that,  I 
must  caution  you,  is  in  the  first  place  rather  a  modern 
notion  of  law,  quite  modern  in  England;  it  is  really  Roman, 
and  wasn't  law  as  it  was  understood  by  our  Anglo-Saxon 
ancestors.  He  didn't  think  of  law  as  a  thing  written, 
addressed  to  him  by  the  king.  Neither  did  he  necessarily 
think  of  it  as  a  thing  which  had  any  definite  punishment 
attached  or  any  code  attached,  any  sanction,  as  we  call  it,  or 
thing  which  enforces  the  law;  a  penalty,  or  fine,  or  imprison- 
ment. There  are  just  as  good  "sanctions"  for  law  outside 
of  the  sanctions  that  our  people  usually  think  of  as  there  are 
inside  of  them;  and  often  very  much  better:  For  instance, 
the  sanction  of  a  strong  custom.  Take  any  example  you 
like;  there  are  many  States  where  marriage  between  blacks 
and  whites  is  not  made  unlawful,  but  where  practically  it  is 
made  tremendously  unlawful  by  the  force  of  public  opinion. 
Take  the  case  of  debts  of  honor,  so-called,  debts  of  gambling; 
they  are  paid  far  more  universally  than  ordinary  commercial 
debts,  even  by  the  same  people;  but  there  is  no  law  enforcing 
them — there  is  no  sanction  for  the  collection  of  gambling 
debts.  And  take  any  custom  that  grows  up.  We  know  how 


8  POPULAR  LAW-MAKING 

strong  our  customs  in  college  are.  Take  the  mere  custom  of  a 
club  table;  no  one  dares  or  ventures  to  supplant  the  members 
at  that  table.  That  kind  of  sanction  is  just  as  good  a  law  as 
a  law  made  by  statute  and  imposing  five  or  ten  dollars  penalty 
or  a  week's  imprisonment.  And  judges  or  juries  recognize 
those  things  as  laws,  just  as  much  as  they  do  statute  laws; 
when  all  other  laws  are  lacking,  our  courts  will  ask  what  is 
the  "custom  of  the  trade."  These  be  laws;  and  are  often 
better  enforced  than  the  statute  law;  the  rules  of  the  New 
York  Stock  Exchange  are  better  enforced  than  the  laws  of 
the  State  legislature.  Now  all  our  early  Anglo-Saxon  law 
was  law  of  that  kind.  And  it  was  not  written  down  for  a 
great  many  centuries,  and  even  after  being  first  written  it 
wasn't  usual  to  affix  any  penalty  ;  they  were  mere  customs, 
but  of  an  iron-bound  nature — customs  that  were  followed  far 
more  devoutly  than  the  masses  of  our  people  follow  any  of 
our  written  laws  to-day.  And  their  "sanction"  was  twofold: 
In  the  first  place,  the  sanction  I  have  mentioned,  universal 
custom,  social  ostracism  for  breach.  A  second  and  very 
obvious  sanction,  that  if  you  do  a  thing  that  I  don't  like  and 
think  is  against  the  law,  I  am  going  to  knock  you  down  or 
kill  you  if  I  can !  That  was  a  sanction,  and  a  perfectly  good 
one;  and  the  question  that  arose,  therefore,  was  not  at  all  as 
to  penalty  for  the  law-breaker;  it  was  whether  there  should 
be  a  penalty  for  the  law-breaker's  being  killed.  That  is  the 
reason  they  didn't  have  to  have  any  penalty!  In  those  days 
if  there  was  a  custom  that  a  certain  tribe  had  a  certain  pas- 
ture, and  a  man  of  another  tribe  pastured  his  cattle  in  that 
pasture,  the  first  man  would  go  to  him  and  they  would  have 
a  fight,  and  if  he  killed  him  he  would  be,  as  we  say,  arrested; 
then  the  matter  would  be  inquired  into  by  the  kin  of  the 
murdered  man  or  neighbors,  and  if  the  killer  could  prove 
that  the  murdered  man  had  committed  a  breach  of  the  law, 
he  went  off  scot  free — so,  as  a  matter  of  fact  he  would  to-day, 
if  it  were  justifiable  homicide.  In  other  words,  it  was  a 
question  of  whether  it  was  justifiable  homicide;  and  that 


OUTLAWRY  AND  UNWRITTEN  LAW  9 

brought  in  the  question  what  the  law  was,  and  it  was  usually 
only  in  that  way.  For  the  law  was  but  universal  custom,  and 
that  custom  had  no  sanction;  but  for  breach  of  the  custom 
anybody  could  make  personal  attack,  or  combine  with  his 
friends  to  make  attack,  on  the  person  that  committed  the 
breach,  and  then,  when  the  matter  was  taken  up  by  the 
members  of  both  tribes,  and  finally  by  the  Witenagemot  as 
a  judicial  court,  the  question  was,  what  the  law  was;  and  if 
it  was  proved,  for  instance,  that  the  law  was  that  there  was 
private  property  in  that  pasture  belonging  to  the  man  who 
committed  the  murder  he  went  off  scot  free.  That  was  the 
working  of  the  old  Anglo-Saxon  law,  and  it  was  a  great  many 
centuries  before  the  notion  of  law  changed  in  their  minds 
from  that.  And  this  "unwritten  law"  perdures  in  the  minds 
of  many  of  the  people  to-day. 

So  it  was  that  the  Witenagemot — this  Great  Council  of  the 
realm — was  primarily  judicial,  in  the  first  instance  always 
judicial;  that  is,  it  never  made  new  laws.  It  got  together 
to  try  people  for  the  breach  of  law;  and  that  incidentally 
brought  up  the  validity  of  the  old  law,  and  then  decided 
whether  old  law  was  valid  or  not.  In  a  sense,  therefore, 
you  see  they  told  what  the  law  was,  they  announced  it;  but 
they  never  supposed  they  were  making  new  laws.  That  was 
the  last  thing  they  intended  to  do,  and  the  last  thing  the 
people  would  have  stood,  had  they  tried  it. 

So  much  for  the  growth  of  law,  the  origin  of  Anglo-Saxon 
law,  as  we  understand  it,  and  for  representative  government, 
and  for  the  origin  of  Parliament.  I  doubt  if  there  was  any 
giving  of  new  law,  anything  that  we  should  call  legislation, 
made  by  the  English  Parliament,  then  called  the  Witenage- 
mot, before  the  Norman  Conquest.  I  have  never  been  able  to 
find  any.  You  find  occasional  announcements  that  the  men  of 
Kent  "shall  have  their  liberties  as  they  used  to,"  and  perhaps 
there  will  be  a  statement  of  what  those  liberties  were,  in  brief; 
but  it  is  always  clearly  meant  that  they  are  stating  the  law 
as  already  existing.  How,  then,  did  they  invent  a  legislature  ? 


10  POPULAR  LAW-MAKING 

The  Roman  law,  the  whole  Roman  system,  as  you  know, 
was  absolutely  distinct,  and  distinct  in  two  great  principles 
which  have  lasted  down  really  into  modern  times,  and  still 
divide  Continental  countries  from  Anglo-Saxon  countries. 
What  I  call  the  first  great  principle  is  universal  law — 
the  principle  that  no  officer  of  government,  no  high  official, 
no  general,  no  magistrate,  no  anybody,  can  do  anything 
against  the  law  without  being  just  as  liable,  if  he  infringed 
upon  a  subject's  liberty,  as  the  most  humble  citizen.  That 
is  a  notion  which  does  not  yet  exist  on  the  Continent  or  any 
part  of  the  world  except  England  and  the  United  States,  and 
the  countries  or  colonies  copying  after  them.  In  Germany, 
for  instance,  Dr.  Gierke  tells  me  it  exists  only  partially  and 
by  a  modern  constitution.  This  is  the  first  great  difference; 
and  the  second  one  is  the  notion  that  laws  are  made  by  the 
people  only,  with  or  without  representative  government.  The 
notion  of  law  as  a  custom  is  Teutonic;  but  on  the  Continent 
the  Germans  abandoned  it.  The  Roman  law  was  always 
law  more  as  we  moderns  think  of  it;  it  was  an  order,  addressed 
by  the  sovereign,  or  at  least  by  a  political  superior,  to  a  sub- 
ject or  to  a  political  inferior;  addressed  in  the  form  of  defi- 
nite writing,  that  is  to  say,  a  statute,  and  with  a  sanction, 
that  is  to  say,  7a  penalty,  a  threat  as  to  what  the  sovereign 
will  do  if  the  subject  does  not  obey.  That  is  the  universal 
notion  of  Roman  law,  and  it  has  so  far  affected  certain  Eng- 
lish writers  on  jurisprudence  that  I  feel  almost  one  should 
be  warned  against  them.  Not  that  their  side  isn't  arguable, 
but  the  weight  of  English  history  seems  the  other  way. 
Austin,  for  instance,  was  so  much  impressed  with  the  notion 
of  law  as  an  order  from  the  sovereign  to  an  inferior  that  he 
practically,  even  when  considering  the  English  Constitution, 
adopts  that  notion  of  law,  and  therefore  arrives  to  some  con- 
clusions, as  it  seems  to  me,  unwarranted,  and  certainly  omits 
to  note  a  great  many  things  that  would  be  noted  had  he  kept 
clearly  the  Anglo-Saxon  theory  of  law  in  mind. 

Now  the  Normans,  mind  you,  had  purely  Roman  law. 


THEORY  THAT  THE   KING  MAKES  LAW  11 

While  they  were  in  Normandy,  being  in  France,  they  had 
imbibed  or  adopted  Roman  notions  of  law,  perhaps  because 
they  were  then  first  civilized.  They  had  lost  their  old  Saxon 
notions,  if  they  had  any,  for  they  were,  after  all,  of  the  same 
race  as  the  Saxons.  Nevertheless,  when  they  conquered  Eng- 
land they  brought  just  as  much  the  notion  of  the  Roman  law 
into  England  as  if  they  had  been  Caesar's  legions.  And  that 
fact  must  always  be  borne  in  mind,  and  that  led  to  centuries 
of  conflict  in  the  making  of  English  constitutional  law.  The 
first  thing,  of  course,  that  they  tried  to  do,  that  the  Norman 
kings  tried  to  do,  was  to  use  law  in  the  Roman  way;  that  is, 
to  make  the  law  themselves,  from  the  king.  For  that  was 
another  consequence  of  the  Roman  law,  that  not  only  was 
it  an  order  by  the  sovereign  power,  but  that  this  sovereign 
power  was  not  in  theory  a  legislature,  as  it  is  with  us  to-day, 
but  the  sovereign;  in  France  and  the  Continental  countries 
laws  were  made  in  theory  and  in  practice  by  the  king.  So 
the  Normans  came  over  with  the  Roman  notion,  in  the  first 
place,  as  to  what  law  was,  that  it  was  a  written,  newly  made 
order  of  a  sovereign,  not  a  thing  that  had  grown  up  and  was 
part  of  the  lives  and  customs  of  the  people,  but  a  thing  made 
out  of  hand  by  the  king;  and,  secondly,  that  it  was  made  by 
the  king  and  not  by  any  legislature.  And  the  first  two  or 
three  centuries  of  English  parliamentary  history  were  mainly 
taken  up,  in  the  English  Parliament,  so  far  as  it  concerns  the 
subject  of  our  course  here,  in  the  contest  between  Parliament 
and  the  king  as  to  who  should  make  law  and  what  law  was. 
It  took  more  than  one  century  for  the  Parliament,  after  the 
Norman  Conquest,  to  revive  as  a  Parliament  at  all;  then 
when  it  did  finally  get  together  it  took  two  or  three  centuries 
before  it  established  the  principle  that  it  had  anything  to  do 
with  the  making  of  law.  The  Norman  kings  regarded  the 
Parliament  as  a  mere  method  of  getting  money  from  the 
people,  hardly  even  as  a  Council  when  they  sought  for  pop- 
ular support ;  and  yet  it  was  through  the  fact  that  they  so 
regarded  Parliament  that  Parliament  was  enabled  ultimately 


12  POPULAR  LAW-MAKING 

to  acquire  the  law-making  or  the  legislative  power  which 
exists  in  all  our  legislatures  to-day.  The  king,  in  those  days, 
derived  his  revenue  mainly  from  his  own  land.  It  was  not 
necessary  for  the  government  to  have  any  revenue  except  for 
what  we  should  call  the  king's  private  purse.  What  was 
wanted  for  public  expense  was  for  two  or  three  well-rec- 
ognized purposes,  all  purposes  of  defence.  The  old  English 
taxation  system  was  in  a  sense  no  system.  There  wasn't  any 
such  thing  as  taxation.  There  was  the  "threefold  necessity" 
as  it  was  called.  It  was  necessary  for  the  king  to  have  money, 
horses,  grain,  supplies,  etc.,  to  defend  the  kingdom,  and  to 
build  forts,  and  to  maintain  bridges  or  defensive  works; 
and  that  was  the  only  object  of  taxation  in  those  times. 
Those  were  the  only  "aids" — they  were  called  "aids"- 
those  were  the  only  aids  recognized.  The  first  word  for  tax 
is  an  "aid,"  granted  voluntarily,  in  theory  at  least,  by  the 
barons  to  the  king,  and  for  these  three  purposes  only.  The 
king's  private  purse  was  easily  made  up  by  the  enormous 
land  he  held  himself.  Even  to-day  the  crown  is  probably  the 
largest  land-owner  in  the  kingdom,  but  at  the  time  of  the 
Conquest,  and  for  many  years  afterward,  he  certainly  owned 
an  hundredfold  as  much,  and  that  gave  him  enough  revenue 
for  his  purse;  of  course,  in  those  days,  money  for  such  things 
as  education,  highways,  police,  etc.,  was  entirely  out  of  their 
mind.  They  were  not  as  yet  in  that  state  of  civilization. 
So  the  king  got  along  well  enough  for  his  own  income  with  the 
land  he  owned  himself  as  proprietor.  But  very  soon  after 
the  Norman  Conquest  the  Norman  kings  began  to  want 
more  money.  Nominally,  of  course,  they  always  said  they 
wanted  it  for  the  defence  of  the  realm.  Then  they  wanted  it, 
very  soon,  for  crusades;  lastly,  for  their  own  favorites.  They 
spent  an  enormous  amount  of  money  on  crusades  and  in  the 
French  wars;  later  they  began  to  maintain — always  abroad 
— what  we  should  call  standing  armies,  and  they  needed 
money  for  all  those  purposes.  And  money  could  yet  be  only 
got  from  the  barons,  the  nobility,  or  at  least  the  landed  gentry, 


PARLIAMENT  RECOVERS  LEGISLATIVE  POWERS     13 

because  the  people,  the  agricultural  laborers  or  serfs,  villeins, 
owned  no  land.  Knights  and  barons  paid  part  of  the  tax  by 
furnishing  armed  men,  but  still,  as  civilization  increased, 
there  was  a  growing  demand  on  the  part  of  the  Norman 
kings  for  money.  Now  this  money  could  be  got  only  from 
the  barons,  and  under  the  Constitution — and  here  we  first 
have  to  use  that  phrase — it  could  only  be  got  from  the 
barons  by  their  consent.  That  is,  the  great  barons  of  the 
realm  had  always  given  these  aids  in  theory  voluntarily. 
The  king  got  them  together,  told  them  what  he  wanted,  and 
they  granted  it;  but  still  it  had  to  come  from  them,  and  in 
the  desire  to  get  money  the  Norman  kings  first  called  to- 
gether the  Great  Council,  first  consulted  the  parliament  which 
afterward  became  their  master.  They  made  a  legislature 
by  calling  them  together,  although  only  for  this  purpose,  to 
give  them  the  power  of  getting  more  money;  but  when  the 
Great  Council  was  once  together  and  the  kings  began  to  be 
more  and  more  grasping  in  their  demands  for  money,  the 
barons  naturally  wanted  something  on  their  side,  and  they 
would  say  to  them:  "Well,  yes — you  shall  have  this  aid — we 
will  vote  you  this  tax — but  the  men  of  England  must  have 
such  and  such  a  law  as  they  used  to  under  Anglo-Saxon 
times."  And  they  pretty  soon  got  to  using  the  word 
"people'*;  the  "people"  must  have  "the  liberties  they  had 
under  Edward  the  Confessor";  and  time  after  time  they 
would  wring  from  a  Norman  king  a  charter,  or  a  concession, 
to  either  the  whole  realm  or  a  certain  part  of  the  realm,  of 
all  the  liberties  and  laws  and  customs  that  they  had  under 
the  old  Saxon  domination — and  that  ultimately  resulted  in 
bringing  the  whole  free  English  law  back.  Thus,  early  law 
was  custom;  Anglo-Saxon  law  was  free  custom;  the  English 
lost  it  under  the  Conquest;  and  they  got  it  back  because 
the  first  Norman  kings  had  to  call  the  council  together,  which 
grew  into  Parliament,  which  then,  in  voting  their  aids  or 
taxes,  demanded  their  "old  liberties";  and  finally,  after 
getting  Magna  Charta,  after  getting  all  their  old  Saxon 


14  POPULAR  LAW-MAKING 

liberties  back,  by  easy  transition,  they  began  to  say:  "We 
would  make  certain  regulations,  ordinances,  laws  of  our 
own";  though  we  have  not  yet  got  to  the  time  where  the 
notion  of  making  new  law,  as  a  statute  is  now  understood, 
existed. 


II 


EARLY    ENGLISH    LEGISLATION    AND    MAGNA 
CHARTA 

Parliament  began  avowedly  to  make  new  laws  in  the  thir- 
teenth century;  but  the  number  of  such  laws  concerning 
private  relations — private  civil  law — remained,  for  centuries, 
small.  You  could  digest  them  all  into  a  book  of  thirty  or 
forty  pages.  And  even  to  Charles  the  First  all  the  statutes  of 
the  realm  fill  but  five  volumes.  The  legislation  under  Crom- 
well was  all  repealed;  but  the  bulk,  both  under  him  and  after, 
was  far  greater.  For  legislation  seems  to  be  considered  a 
democratic  idea;  "judge-made  law"  to  be  thought  aristo- 
cratic. And  so  in  our  republic;  especially  as,  during  the 
Revolution,  the  sole  power  was  vested  in  our  legislative  bodies, 
and  we  tried  to  cover  a  still  wider  field,  with  democratic 
legislatures  dominated  by  radicals.  Thus  at  first  the  Amer- 
ican people  got  the  notion  of  law-making;  of  the  making  of 
new  law,  by  legislatures,  frequently  elected ;  and  in  that  most 
radical  period  of  all,  from  about  1830  to  1860,  the  time  of 
"isms"  and  reforms — full  of  people  who  wanted  to  legislate 
and  make  the  world  good  by  law,  with  a  chance  to  work  in 
thirty  different  States — the  result  has  been  that  the  bulk  of 
legislation  in  this  country,  in  the  first  half  of  the  last  century, 
is  probably  one  thousandfold  the  entire  law-making  of 
England  for  the  five  centuries  preceding.  And  we  have  by 
no  means  got  over  it  yet;  probably  the  output  of  legislation 
in  this  country  to-day  is  as  great  as  it  ever  was.  If  any 
citizen  thinks  that  anything  is  wrong,  he,  or  she  (as  it  is 
almost  more  likely  to  be),  rushes  to  some  legislature  to  get 

15 


16  POPULAR  LAW-MAKING 

a  new  law  passed.  Absolutely  different  is  this  idea  from  the 
old  English  notion  of  law  as  something  already  existing. 
They  have  forgotten  that  completely,  and  have  the  modern 
American  notion  of  law,  as  a  ready-made  thing,  a  thing  made 
to-day  to  meet  the  emergency  of  to-morrow.  They  have 
gotten  over  the  notion  that  any  parliament,  or  legislature,  or 
sovereign,  should  only  sign  the  law — and  I  say  sign  advisedly 
because  he  doesn't  enact  it,  doesn't  create  it,  but  signs  a 
written  statement  of  law  already  existing;  all  idea  that  it 
should  be  justified  by  custom,  experiment,  has  been  forgotten. 
And  here  is  the  need  and  the  value  of  this  our  study;  for  the 
changes  that  are  being  made  by  new  legislation  in  this  coun- 
try are  probably  more  important  to-day  than  anything  that 
is  being  done  by  the  executive  or  the  judiciary — the  other 
two  departments  of  the  government. 

But  before  coming  down  to  our  great  mass  of  legislation 
here  it  will  be  wise  to  consider  the  early  English  legislation, 
especially  that  part  which  is  alive  to-day,  or  which  might  be 
alive  to-day.  I  mentioned  one  moment  ago  thirty  pages  as 
possibly  containing  the  bulk  of  it.  I  once  attempted  to 
make  an  abstract  of  such  legislation  in  early  England  as  is 
significant  to  us  to-day  in  this  country; *  not  the  merely 
political  legislation,  for  ours  is  a  sociological  study.  We  are 
concerned  with  those  statutes  which  affect  private  citizens, 
individual  rights,  men  and  women  in  their  lives  and  busi- 
nesses; not  matters  of  state,  of  the  king  and  the  commons, 
or  the  constitution  of  government.  Except  incidentally,  we 
shall  not  go  into  executive  or  political  questions,  but  the 
sociological — I  wish  there  were  some  simpler  word  for  it — 
let  us  say,  the  human  legislation;  legislation  that  concerns 
not  the  government,  the  king,  or  the  state,  but  each  man  in 
his  relations  to  every  other;  that  deals  with  property,  mar- 
riage, divorce,  private  rights,  labor,  the  corporations,  com- 
binations, trusts,  taxation,  rates,  police  power,  and  the  other 
great  questions  of  the  day,  and  indeed  of  all  time. 

1  See  "  Federal  and  State  Constitutions,"  book  II,  chap.  2. 


EARLY  LEGISLATION   POLITICAL  17 

Had  it  not  been  for  the  Conquest,  it  would  hardly  have 
been  necessary  to  have  enacted  the  legislation  of  the  first  two 
or  three  centuries  at  all.  Its  object  mainly  was  political,  that 
is,  to  enforce  Saxon  law  from  Norman  kings.  No  change 
was  made,  nothing  new  was  added.  There  was,  however,  a 
little  early  Saxon  legislation  before  the  Conquest.  The  best 
compilation  is  contained  in  Stubbs's  "Selected  Charters." 
He  says  that  the  earliest  English  written  laws  contained 
amendments  of  older  unwritten  customs,  or  qualifications  of 
those  customs,  when  they  were  gradually  wearing  out  of 
popular  recollection.  Such  documents  are  generally  obscure. 
They  require  for  their  elucidation  a  knowledge  of  the  cus- 
toms they  were  intended  to  amend.  That  is  as  I  told  you: 
everybody  was  supposed  to  know  the  law,  and  early  written 
statutes  were  either  mere  compilations  of  already  existing 
law,  slight  modifications  of  them,  or  else  in  the  nature  of 
imposing  various  penalties — all  of  which  assume  that  you 
know  the  law  already.  When  they  attempted  codification, 
which  they  did  about  twice  before  the  Conquest  (especially 
under  Edward  the  Confessor,  for  that  reason  he  is  called 
the  Father  of  English  law,  the  English  Justinian,  because 
he  was  enough  of  a  civilian  to  understand  what  a  code  was), 
King  Edward  made  the  attempt  to  get  a  certain  amount  of 
law  written  out;  but  even  that  would  be  very  unintelligible 
if  you  tried  to  read  it,  for  he  assumed  that  one  knew  it  all 
already,  and  it  also  is  mainly  in  the  nature  of  imposing  pen- 
alties, not  stating  the  law  as  it  was.  However,  that  is  called 
the  first  English  code.  All  the  Saxon  laws  Dr.  Stubbs  could 
find  fill  only  twenty-two  pages  of  his  small  book;  and  he 
says  that  English  law,  from  its  first  to  its  latest  phase,  has 
never  possessed  an  authoritative,  constructive,  systematic,  or 
approximately  exhaustive  statement,  such  as  was  attempted 
by  the  great  founders  of  the  civil  or  Continental  law,  by 
Justinian  or  by  Napoleon  Bonaparte.  Now  this  is  true,  even 
to-day,  of  our  English  and  our  American  law.  That  is,  the 
great  bulk  of  the  law  that  is  administered  in  our  courts  is  not 


18  POPULAR  LAW-MAKING 

"  written,"  it  is  not  in  any  code.  There  are,  of  course,  text- 
books on  the  subject,  but  they  are  of  no  binding  authority. 
It  resides  in  the  learning  of  the  judges.  It  is  what  is  called 
court-made  law — "jus  dieere,"  not  "jus  dare"  Our  judges 
are  still  supposed  to  tell  what  the  law  is,  and  they  sometimes, 
as  the  common  law  is  a  very  elastic  thing,  have  to  make  new 
law.  That  is,  if  the  precise  case  isn't  covered  by  any  pre- 
vious decision  or  by  any  statute,  the  judge  or  the  court  will 
say  what  the  common  law  ought  to  be  when  applied  to  that 
state  of  facts.  So  our  law  is  a  continually  growing  law,  and 
largely  made  still  in  the  old  Saxon  way,  by  custom  and  the 
judges,  and  still  under  the  theory  that  the  common  law  is 
an  existing  thing;  that  the  law  exists  and  the  judge  only  ex- 
pounds. We  have  never  lost  sight  of  that  theory. 

These  early  Anglo-Saxon  laws  mostly  concern  only  mat- 
ters of  procedure  for  the  courts,  or  the  scale  of  punishment. 
As  they  assume  a  knowledge  of  existing  law,  they  are  often 
hard  to  understand.  Here  are  some  of  the  laws  of  Wessex: 

A.  D.  690.    Wessex  King  Ini. 

CAP.  11.  "If  any  one  sell  his  own  countryman,  bond  or  free, 
though  he  be  guilty,  over  sea,  let  him  pay  for  him  according  to  his 


As  to  "wer."  Now  there  were  slaves  in  England  in 
those  days;  at  the  time  of  the  Conquest  the  Domesday 
Book  reports  twenty- five  thousand.  Slaves,  I  mean;  not  the 
unfree  agricultural  laborers,  they  were  in  a  higher  class, 
but  the  regularly  bound  slaves,  who  were  descendants,  either 
of  the  early  British  inhabitants  or  of  the  Saxons  themselves, 
who  had  been  punished  in  the  courts  and  had  been  sen- 
tenced into  slavery,  or  men  who  had  voluntarily  sold  them- 
selves into  slavery.  For  under  early  Saxon  law  a  man  could 
sell  his  child  into  slavery  if  the  child  were  under  seven  years 
old,  and  above  fourteen  the  child  could  sell  himself.  This 
refers,  of  course,  to  that ;  it  is  really  a  kind  of  predecessor 
of  our  Thirteenth  Amendment;  that  is,  it  forbids  slavery; 


EARLY  ANGLO-SAXON   LAWS  19 

it  forbids  making  new  slaves.  The  word  "wer"  is  the  word 
we  have  in  "  wer-wolf,"  meaning  blood  ;  for  instance, 
"weregild  "  is  a  man's  blood  money.  Every  man  had  a 
price  from  the  king  down;  if  a  man  killed  the  king  he  had 
to  pay,  we  will  say,  fifty  thousand  pounds;  if  a  thane,  it 
might  be  one  or  two  thousand  ;  if  an  ordinary  freeman, 
one  hundred  pounds,  and  so  on. 

CAP.  36.  "  Let  him  who  takes  a  thief,  or  to  whom  one  taken  is 
given,  and  he  then  lets  him  go,  or  conceals  the  theft,  pay  for  the 
thief  according  to  his  'wer.'  If  he  be  an  ealdorman,  let  him  forfeit 
his  shire,  unless  the  king  is  willing  to  be  merciful  to  him." 

Now  the  earliest  direct  legislation  about  personal  property 
in  a  statute  is  as  late  as  1100;  but  this  early  Saxon  law 
was  a  recognition  of  personal  property,  because  a  man  can- 
not steal  a  thing  unless  there  is  property.  This  section, 
therefore,  implies  property  in  personalty;  because  a  man 
cannot  steal  land;  but  it  never  occurred  to  them  to  pass  a 
law  saying  that  there  shall  be  private  property,  because  that 
was  the  unwritten  law  that  they  were  all  supposed  to  know. 

A.  D.  890.    Wessex.    Alfred. 

CAP.  27.  "  If  a  man,  kinless  of  paternal  relatives,  fight  and  slay 
a  man,  and  then  if  he  have  maternal  relatives,  let  them  pay  a  third 
of  the  'wer';  his  guild-brethren  a  third  part;  for  a  third  let  him 
flee.  If  he  have  no  maternal  relatives,  let  his  guild-brethren  pay 
half,  for  half  let  him  flee." 

CAP.  28.  "  If  a  man  kill  a  man  thus  circumstanced,  if  he  have 
no  relatives,  let  half  be  paid  to  the  king,  half  to  his  guild-brethren." 

It  is  very  hard  for  us  to  understand  what  that  means. 
One  would  infer  that  the  weregild  was  only  paid  by  a  man 
with  relatives  on  his  father's  side.  It  doesn't  say  that,  but 
that  is  the  inference.  We  shall  have  plenty  to  say  about 
the  guilds  later — the  historical  predecessors  of  the  modern 
trades-unions.  We  here  find  the  word  guild  recognized  and 
spoken  of  in  the  law  as  early  as  890. 


20  POPULAR   LAW-MAKING 

A.  D.  020.    Wessex.    Edward. 

"  2.  And  if  a  ceorl  throve,  so  that  had  fully  five  hides  of  his  own 
land,  church  and  kitchen,  bell-house  and  burh-gate-seat,  and  special 
duty  in  the  king's  hall,  then  was  he  thenceforth  of  thegn-right 
worthy. 

"6.  And  if  a  merchant  throve,  so  that  he  fared  thrice  over  the 
wide  sea  by  his  own  means,  then  was  he  thenceforth  of  thegn-right 
worthy." 

Worldly  success  has  thus  always  been  the  foundation  of 
English  nobility. 

Then  there  is  a  good  deal  about  how  much  you  have  to 
pay  for  a  churl,  and  how  much  for  an  earl,  and  so  on,  leaving 
out  only  the  slaves;  for  all  the  free  people  of  England  in 
Saxon  times  were  divided  into  earls  and  churls;  that  is, 
noblemen  and  agricultural  laborers  or  yeomanry;  these  were 
the  two  estates  besides  the  church,  always  a  class  by  itself. 
Later  there  grew  up  the  thanes,  who  were  merely  large  land- 
lords; the  law  became  that  a  man  that  had  five  hides  of 
land,  five  or  six  hundred  acres,  with  a  farm,  should  by  the 
mere  fact  of  having  that  land  become  a  thane,  an  earl.  That 
method  of  ennobling  a  man  by  land  got  to  be  a  way,  at  that 
time  the  only  way,  by  which  a  churl  or  a  villein  could  become 
a  nobleman  or  even  be  emancipated.  Exactly  as  now  with 
our  American  Indians;  when  an  Indian  gets  one  hundred  and 
sixty  acres  given  to  him  in  severalty  he  becomes,  under 
the  Dawes  Act,  a  citizen  of  the  United  States.  Later  there 
grew  up  emancipation  by  the  guilds.  The  word  guild  meant 
the  members  of  a  certain  handicraft,  but  that  was  rather  the 
secondary  meaning;  it  originally  meant  the  freemen  of  the 
town.  But  the  freemen  of  the  towns  were  made  up  of 
the  freemen  of  the  guilds.  No  one  could  become  a  member 
of  the  guild  without  going  through  certain  ceremonies,  much 
as  he  would  now  to  join  a  trades-union;  and  no  one  could 
become  a  freeman  of  the  town  unless  he  was  a  freeman  of 
the  guild.  The  law  grew  to  be,  however,  that  if  a  man  suc- 
ceeded in  staying  in  a  town  for  a  year  and  a  day,  without 
being  turned  out,  plying  his  handicraft,  he  became  by  that 


THREEFOLD  DIVISION  OF  GOVERNMENT  21 

mere  fact  a  freeman  of  the  town;  for  the  citizens  of  towns 
established  their  liberty,  both  personal  and  political,  far 
earlier  than  the  dwellers  on  agricultural  land. 

959-975-    Edgar. 

CAP.  1.  "Secular  Ordinance.  Now  this  is  the  secular  ordinance 
which  I  will  that  it  be  held.  This,  then,  is  first  what  I  will:  that 
every  man  be  worthy  of  folk-right,  as  well  poor  as  rich;  and  that 
righteous  dooms  be  judged  to  him;  and  let  there  be  such  remission 
in  the  'bot'  as  may  be  becoming  before  God  and  tolerable  before 
the  world." 

1 01 6.    Canute. 

CAP.  71.  "And  if  any  one  depart  this  life  intestate,  be  it  through 
his  neglect,  be  it  through  sudden  death;  then  let  not  the  lord  draw 
more  from  his  property  than  his  lawful  heriot.  And  according  to 
his  direction,  let  the  property  be  distributed  very  justly  to  the  wife 
and  children  and  relations,  to  every  one  according  to  the  degree  that 
belongs  to  him." 

CAP.  81.  "And  I  will  that  every  man  be  entitled  to  his  hunting 
in  wood  and  in  field,  on  his  own  possession.  And  let  every  one 
forego  my  hunting:  take  notice  where  I  will  have  it  untrespassed 
on  under  penalty  of  the  full  'wite.'" 

But  even  the  great  code  of  Edward  the  Confessor  has, 
for  the  most  part,  to  do  only  with  political  divisions,  what 
shall  be  a  shire,  what  a  parish,  etc.,  and  certain  technical 
matters  that  have  now  grown  obsolete.  So  we  may  con- 
clude with  the  statement,  substantially  accurate,  that  there 
was  practically  no  new  legislation,  no  constructive  legislation 
under  the  Saxons;  their  social  law  was  all  unwritten. 

And  Parliament  did  not  begin  by  being  a  law-making 
body.  Its  legislative  functions  were  not  very  active,  as  they 
were  confined  to  declaring  what  the  law  was;  more  impor- 
tant were  its  executive  and  judicial  functions.  In  modern 
English  government,  particularly  in  our  own,  one  of  the  basic 
principles  is  that  of  the  three  departments,  executive,  legis- 
lative, and  judicial;  the  Norman  or  Roman  theory  rather 
reposed  all  power  in  one;  that  is,  in  the  sovereign,  commonly, 
of  course,  the  king,  the  others  being  theoretically  his  advisers 


22  POPULAR  LAW-MAKING 

or  servants.  In  England,  to-day,  the  real  sovereign  is  the 
Parliament;  the  merest  shadow  of  sovereignty  is  left  to  the 
executive,  the  king,  and  none  whatever  given  the  judicial 
branch.  In  this  country  we  preserve  the  three  branches 
distinct,  though  none,  not  all  three  together,  are  sovereign; 
it  is  the  people  who  are  that.  And  each  department  is  of 
equal  dignity;  although  at  one  period  there  was  a  certain 
amount  of  public  complaint  that  Congress  was  usurping 
more  power  than  belongs  to  it,  and  recently  that  power  was 
being  usurped  by  the  president,  there  has  hardly  been 
(except  from  Mr.  Gompers  and  Mr.  Hearst)  any  complaint 
that  power  is  usurped  by  the  judicial  branch,  however  un- 
popular its  decisions.  But  in  England  there  is  no  pre- 
tence of  maintaining  the  three  branches  uniform  either  in 
importance  or  in  power.  Starting  with  the  Great  Council, 
which  had  originally  only  a  certain  amount  of  executive 
power  and  a  great  deal  of  judicial  power,  they  have  retained 
and  added  to  the  former,  while  practically  giving  up  the^  lat- 
ter; and,  moreover,  they  have  divided  into  the  two  houses, 
the  House  of  Lords  and  the  House  of  Commons,  with  a 
division  of  sovereignty  between  them,  the  Commons,  of  course, 
getting  the  lion's  share.  The  only  judicial  power  substan- 
tially now  remaining  in  the  English  Parliament  is  the  power 
of  impeachment,  which  is  rarely  exercised  in  England,  and 
the  appellate  jurisdiction  of  the  House  of  Lords,  of  the  "law" 
lords,  that  is,  those  peers  who  held  legal  offices.  On  the 
other  hand  the  legislative  function  of  Parliament,  which 
began  merely  in  the  way  of  saying  what  the  law  was,  has 
enormously  developed,  and  still  more  so  the  executive. 
Thus  the  legislative  branch  of  the  three  divisions  in  the 
English  government  has  increased  out  of  all  proportion  to 
both  the  others,  having  now  all  the  legislative  power  and 
most  of  the  executive.  And  legislatively  it  is  omnipotent; 
it  is  confined  by  no  constitution  ;  even  the  king  cannot 
withhold  his  consent.  Parliament  can  make  any  law, 
although  against  what  was  the  Constitution;  the  Constitution 


NO  CONSTITUTION  CONTROLS  PARLIAMENT      23 

may  be  modified  by  a  simple  statute.  So  their  legislative 
function  is  infinite;  and  their  executive  function  has,  in 
substance,  grown  very  large,  because  the  British  government 
is  carried  on  by  the  cabinet,  which  is  practically  a  committee 
of  the  House  of  Commons.  But  of  the  judicial  function, 
which  was  the  principal  function  of  the  Great  Council  at 
the  time  of  the  Conquest,  hardly  a  shred  remains.  It  is 
the  history  of  all  countries  that  people  are  not  jealous  of 
the  judicial  power,  while  they  are  extremely  anxious  to 
seize  the  legislative  and  executive.  With  us,  however,  we 
are  supposed  to  have  all  three  functions  co-ordinate  and  in 
good  working  activity.  But  in  both  countries,  money  bills, 
bills  imposing  taxes,  are  the  function  of  the  lower  house. 
That  principle  grew  historically  from  the  principle  that  all 
taxation  must  be  voted  by  the  people,  directly  or  indirectly; 
must  be  with  the  common  consent  and  for  the  common  benefit. 
That  principle  was  established  by  the  House  of  Commons, 
and  consequently  they  arrogated  to  themselves  that  part  of 
the  legislative  power.  That  principle  we  have  retained  in 
our  Federal  Constitution,  and  in  most  of  our  State  constitu- 
tions; all  of  which  have  the  double  house. 

The  first  functions  of  Parliament  were  restricted  to  voting 
taxes.  The  king  called  the  barons  together  merely  to  get 
"aids,"  and  they  wouldn't  give  them  until  he  recognized 
what  they  chose  to  call  the  old  law  of  England,  always  a  pre- 
existing law.  It  was  still  a  long  time  before  there  was  con- 
structive legislation.  Just  as,  before  the  Conquest,  in  the 
seventh  century,  we  find  it  said  of  the  law  of  Wihtred: 
"Then  the  great  lords  with  the  consent  of  all  came  to  a  reso- 
lution upon  these  ordinances  and  added  them  to  the  cus- 
tomary laws  of  the  men  of  Kent";  and,  in  the  time  of  King 
Alfred:  "I,  then,  Alfred,  king,  gathered  these  [laws]  to- 
gether, and  commanded  many  of  those  to  be  written  which 
our  forefathers  held,  those  which  to  me  seemed  good;  and 
many  of  those  which  seemed  to  me  not  good  I  rejected  them, 
by  the  counsel  of  my  'witan/  and  they  then  said  that  it 


24  POPULAR  LAW-MAKING 

seemed  good  to  them  all  to  be  holden"; l  so,  after  the  Con- 
quest, every  Norman  king  was  made  on  his  coronation  oath 
to  promise  this,  the  law  of  Edward  the  Confessor,  until 
Magna  Charta;  after  that  they  promised  to  respect  Magna 
Charta  instead,  which  was  thus  reissued  or  confirmed  thirty- 
two  times  in  the  eighty-two  years  which  intervened  between 
Runnymede  and  the  final  Confirmation  of  Charters  under 
Edward  I.  Thus,  William  the  Conqueror  himself,  in  his 
charter  to  the  city  of  London,  says,  in  Anglo-Saxon:  "And 
I  do  you  to  wit  that  I  will  that  ye  two  be  worthy  of  all  the  laws 
that  ye  were  worthy  of  in  King  Edward's  day."  So  the 
Domesday  Book  records  (<the  customs,"  that  is  to  say,  the 
laws,  of  various  towns  and  counties;  these  bodies  of  customs 
invariably  containing  a  mere  list  of  penalties  for  the  breach 
of  the  established  law;  while  later  charters  usually  give  the 
inhabitants  of  a  town  all  the  customs  and  free  privileges  en- 
joyed by  the  citizens  of  London. 

But  after  the  Conquest  laws  could  only  be  enacted  with 
the  concurrence  of  the  king;  and  the  phrase  was,  and  is 
still,  in  form,  that  "the  king  wills  it" — Le  Roy  le  veult. 
Nevertheless,  Parliament  usually  originated  laws.  The  early 
Norman  kings  cared  nothing  about  legislation;  their  sole 
desire  was  to  get  money  from  the  people.  For  two  centuries, 
therefore,  Parliament  was  occupied  only  with  laws  recog- 
nizing the  old  Anglo-Saxon  laws  previously  existing,  or  laws 
removing  abuses  of  the  royal  power;  and  the  desire  of  the 
king  to  tax  the  people  was  used  as  the  lever  to  get  him  to 
assent  to  these  laws. 

With  the  usual  sensible  indifference  of  the  English  race  to 
mere  matters  of  form,  they  allowed  the  Norman  kings  to  go 
on  declaring  the  laws  and  signing  them  as  if  they  were  made 
only  by  the  crown,  which  was  the  Norman  theory — not  car- 
ing for  the  shadow,  if  they  could  get  the  substance.  Thus 
they  established,  in  the  first  two  or  three  centuries,  the  right 
to  force  legislation  on  the  king,  and  they  did  it  by  the  instru- 
»  Stubbs's  "  Charters,"  p.  62. 


RECOGNITION  OF  PERSONAL  PROPERTY    25 

merit  of  the  taxation  power.  For  taxation  must  be  "by  the 
common  consent  of  the  realm";  no  taxation  without  repre- 
sentation, as  the  Declaration  of  Independence  puts  it,  is 
probably  the  earliest  principle  of  the  English  Constitution; 
and  it  is  most  significant  to  the  student  of  the  constitutional 
law,  a  most  necessary  reminder  to  those  who  do  not  value 
our  Constitution,  that  it  was  the  departure  by  George  III 
from  this  very  earliest  of  English  constitutional  principles 
that  caused  the  loss  of  his  American  empire. 

This  was  six  hundred  years  old,  therefore,  at  the  time  of 
our  Revolution.  Except  those  two  principles,  taxation  by 
common  consent  and  taxation  for  the  common  benefit — 
which  latter  was  not  finally  established  until  two  hundred 
years  later  (that  is,  it  was  put  in  the  first  Magna  Charta, 
John's,  and  then  quietly  dropped  out  by  Henry  II,  and  kept 
out  of  the  charter  for  nearly  one  hundred  years), — we  have  to 
come  down  to  the  year  1 100  before  we  find  the  first  sociological 
statute.  "  Henry  I  called  another  convention  of  all  the  es- 
tates of  the  realm  to  sit  in  his  royal  palace  at  London  .  .  , 
the  prohibiting  the  priests  the  use  of  their  wives  and  concu- 
bines was  considered,  and  the  bishops  and  clergy  granted  to 
the  king  the  correction  of  them  for  that  offence;  by  which 
means  he  raised  vast  sums  of  money  compounding  with  the 
priests.  .  .  ."' 

In  1  Henry,  cap.  VII,  is  another  recognition  of  personal 
property — it  says  that  at  a  man's  death  it  is  to  be  divided 
between  his  widow  and  his  heirs.  Now  that  may  seem 
commonplace  enough;  but  it  is  interesting  to  note,  as  in 
the  law,  personal  property  did  not  come  first;  property  in 
land  was  many  centuries  earlier.  And  this  suggests  the 
legal  basis  and  present  tendency  of  the  law  of  property. 
"Property  exists  only  by  the  law";  and  extreme  socialists 
say  that  all  private  property  is  robbery.  No  law,  no  prop- 
erty; this  is  true.  Property  is  an  artificial  thing.  It  is  a 
creation  of  law.  In  other  words,  where  there  is  now  no  law 
except  statute,  it  is  the  creation  of  statute.  That  may 

1  Cobbett's  "Parliamentary  History  of  England,"  I,  4. 


26  POPULAR  LAW-MAKING 

sound  a  commonplace,  but  is  not,  when  you  remember  that 
socialists,  who  are  attacking  property,  do  so  on  precisely 
that  ground.  They  say  it  is  a  fictitious  thing,  it  is  a  matter 
of  expediency,  it  is  a  matter  which  we  can  recognize  or  not, 
as  we  like;  "no  law,  no  property,"  and  they  ask  us  to  con- 
sider whether,  on  the  whole,  it  is  a  good  thing  to  have  any 
property  at  all,  or  whether  the  state  had  not  better  own 
all  the  property.  But  our  Federal  and  State  constitutions 
guard  it  expressly. 

Thus,  property  is  the  very  earliest  legal  concept  expressed 
in  statutes,  just  as  it  is  perhaps  the  earliest  notion  that  gets 
into  a  child's  mind.  And  ownership  of  land  preceded  per- 
sonal property — for  the  perfectly  simple  reason  that  there 
was  very  little  personal  property  until  comparatively  late  in 
civilization,  and  for  the  other  more  significant  reason  that  an 
Anglo-Saxon  freeman  didn't  bother  with  law  when  he  had  his 
good  right  hand.  In  the  fifth,  sixth,  and  seventh  centuries, 
when  we  were  barbarous  tribes,  a  man's  personal  property 
consisted  chiefly  in  his  spear,  his  weapons,  or  his  clothes; 
enemies  were  not  very  apt  to  take  them,  and  if  they  did,  he 
was  prepared  to  defend  them.  Then,  cattle,  in  those  days, 
belonged  to  the  tribe  and  not  to  the  individual.  So,  I  should 
fancy,  of  ships — that  is,  galleys,  not  private  "  coracles,"  the 
earliest  British  boats.  Consequently  there  wasn't  any  need 
for  a  law  as  to  personal  property.  What  little  there  was 
could  be  easily  defended.  But  with  land  it  was  different. 
Property  in  land  was  recognized  both  among  the  English  and, 
of  course,  with  the  Normans;  and  in  ways  so  similar  that 
it  was  very  easy  for  the  Normans  to  impose  the  feudal  system 
upon  England.  There  had  been  no  feudal  system  before 
the  Norman  Conquest;  there  were  then  three  kinds  of  land: 
the  rare  and  exceptional  individual  land,  owned  by  one  man 
—always  a  freeman,  not  a  villein  or  slave — and  this  was 
very  small  in  extent,  limited  to  a  very  few  acres  around  a 
man's  home.  Most  of  the  land  was  held  in  common;  the 
folc  land,  so-called,  which  belonged  to  the  tribe;  the  land 
on  which  the  cows  of  the  village  were  pastured.  And  finally 


THE  CHARTER  OF  LIBERTIES  27 

there  was  the  public,  or  unappropriated,  or  waste  land. 
Most  of  this  last  was  seized,  after  the  Conquest,  by  the  big 
feudal  lords.  For  they  came  in  with  their  feudal  system; 
and  the  feudal  system  recognized  no  absolute  ownership  in 
individuals.  Under  it  there  were  also  three  kinds  of  land, 
and  much  the  same  as  the  Saxon,  only  the  names  were  differ- 
ent: there  was  the  crown  land — now  I  am  speaking  English 
and  not  Norman-French — which  belonged  to  the  king  and 
which  he  probably  let  out  most  profitably;  there  was  the 
manor,  or  the  feudal  land,  which  was  owned  by  the  great 
lords,  and  was  not  let  by  the  king,  directly;  and  then  there 
was  the  vacant  land,  the  waste  land,  which  was  in  a  sense 
unappropriated.  Now  all  the  Norman  kings  had  to  do  was  to 
bring  the  feudal  system  over  the  Saxon  law  of  land,  so  that 
the  tribal  land  remained  the  only  private  land — that  which 
is  called  "boke  land."  This  is  land  such  as  all  our  land  is 
to-day,  except  land  like  our  Cambridge  Common.  With  a 
very  few  exceptions,  all  our  land  is  "boke"  land — freehold 
land.  Then  there  was  the  public  land;  but  that  very  soon 
was  taken  by  the  lords  and  let  out  to  their  inferiors;  this 
was  the  great  bulk  of  land  in  England  after  the  Norman 
Conquest.  Lastly  again  there  was  the  crown  land,  out  of 
which  the  king  got  his  revenue.  As  something  like  this 
threefold  system  of  land  existed  before  the  Conquest,  a 
subtle  change  to  the  feudal  system  was  comparatively  easy 
by  a  mere  change  of  name. 

In  the  same  year— 1100— is  the  Charter  of  "Liberties" 
of  Henry  I.  It  restores  the  laws  of  Edward  the  Confessor 
"with  the  amendments  made  by  my  father  with  the  counsel 
of  his  barons."  It  promises  in  the  first  section  relief  to  the 
kingdom  of  England  from  all  the  evil  customs  whereby  it 
had  lately  been  oppressed,  and  finally  returns  to  the  people 
the  laws  of  Edward  the  Confessor,  "with  such  emendations 
as  my  father  made  with  the  consent  of  his  barons."  l  In  his 
charter  to  the  citizens  of  London 2  he  promises  general  f  ree- 

»  Stubbs's  "Charters,"  p.  101  (clause  13).  *  Ibid.,  p.  108. 


28  POPULAR  LAW-MAKING 

dom  from  feudal  taxes  and  impositions,  from  dane-geld  and 
from  the  fine  for  the  murder  of  a  Norman ;  and  the  Charter 
of  Liberties  issued  by  Henry  II  in  1154  confirms  their  "liber- 
ties and  free  customs  to  all  men  in  the  kingdom."  *  From 
this  dates  the  equality  of  Englishmen  before  the  law,  com- 
mons as  well  as  barons.  Henry  II  was  the  first  Norman 
king  who  had  the  old  Saxon  blood,  and  therefore  he  was 
looked  forward  to  with  a  great  deal  of  enthusiasm  by  the 
people  of  England.  For  although  it  is  only  one  hundred 
years  after  the  Conquest,  the  Normans  and  the  Saxons  had 
pretty  well  fused,  and  the  Normans,  who  were  inferior  in 
number,  had  got  thoroughly  imbued  with  the  free  notion  of 
Anglo-Saxon  law.  So  they  got  this  charter  from  him;  but 
there  is  no  legislation  to  concern  us  in  it,  it  is  only  political. 
It  has  a  great  deal  to  do  with  the  church,  and  with  what  the 
king  will  not  do;  it  binds  him,  but  it  does  not  state  any  law 
directly. 

There  is  further  a  continued  evidence  of  the  efforts  of  the 
people  to  restore  the  common  law  of  England  as  against  the 
king's  law  or  Roman  law,  or  later  against  the  law  of  the 
church,  also  a  kind  of  Roman  law  known  as  canon  law; 
and  later  still  against  the  law  of  the  king's  chancellor,  what 
we  should  now  call  chancery  jurisdiction ;  for  the  jealousy  of 
chancery  procedure  was  quite  as  great  in  the  twelfth  century 
as  it  is  with  the  most  radical  labor  leaders  to-day;  but  of  this 
later  on. 

In  1159  they  succeeded  in  doing  away  with  the  Norman 
method  of  trying  cases  by  battle  and  the  Saxon  method  of 
trying  by  oath,  and  by  the  machinery  of  the  Norman  Great 
Assize  introduced  again  trial  by  jury.  For  this  in  itself  is 
probably  an  old  Saxon  institution.  And  in  1164  came  the 
great  Constitutions  of.  Clarendon,  the  principal  object  of 
which  was  to  free  the  people  from  the  church  law  and  sub- 
ject the  priests  to  the  ordinary  common  law  as  in  times  before 
the  Conquest — for  now,  "as  the  influence  of  the  Italian  law- 

i  Ibid.,  p.  135. 


DISTINCTION  BETWEEN  SIN  AND  CRIME          29 

yers  increased,"  1  all  the  priests  and  clergy  were  above 
it.  It  was  the  first  great  statute  which  clearly  subjected 
the  church — which,  of  course,  was  the  Church  of  Rome — to 
the  common  secular  law.  There  was  a  vast  jurisdiction  of 
church  law  ("Doctors  commons"  courts  lasted  until  a  gen- 
eration ago  in  England);  some  of  it  still  remains.  But  in 
these  early  days  all  matters  concerning  marriage,  divorce, 
guardianship  of  children,  ownership  of  property  after  death, 
belonged  to  church  law.  It  is  hard  to  see  why,  except  that 
the  mediaeval  church  arrogated  to  itself  anything  that  con- 
cerned sin  in  any  way — anything  that  concerned  the  relation 
of  the  sexes,  that  concerned  the  Holy  Sacraments,  and  mar- 
riage is  a  sacrament.  Consequently  the  mediaeval  church 
claimed  that  it  had  jurisdiction  over  all  marriage,  and  over 
all  divorce;  and  also  took  jurisdiction  over  a  man's  chil- 
dren at  his  death,  and  over  his  property,  now  exercised  by 
our  courts  of  probate.  This  they  got  out  of  the  notion 
that  when  a  man  was  dead,  there  was  something,  in  a  sense, 
that  went  beyond  this  life  in  looking  after  his  property  and 
children.  And  down  until  twenty  or  thirty  years  ago  all 
jurisdiction  in  England  in  matters  which  concerned  a  man's 
property,  after  death,  belonged  to  the  church  courts  and 
their  successors.  The  church  law  was  based  on  the  Roman 
law,  but  was  called  canon  law,  the  technical  word,  because  it 
is  the  "canons"  of  the  church.  It  is  a  convenient  term  to 
distinguish  it  from  the  ordinary  civil  law  of  the  Continent. 
So  that  the  Constitutions  of  Clarendon  began  what  was 
completed  only  under  Henry  VIII;  they  very  clearly  as- 
serted the  claim  of  the  king  to  be  supreme  over  the  Church 
of  England.  The  Bishop  of  Rome,  as  Henry  VIII  called 
the  pope,  had  no  more  power  than  any  other  foreign 
bishop.2  There  still  remained  the  institution  known  as  bene- 
fit of  clergy,  by  which  any  priest,  or  later  any  clerk  or  cleric 
(which  word  came  to  mean  any  one  who  could  read  and 

1  Stubbs,  p.  136. 

*  Yet  "  Peter's  Pence  "  were  initiated  by  Ini,  King  of  the  West  Saxons, 
about  690  ! 


30  POPULAR  LAW-MAKING 

write)  could  get  off  of  any  criminal  accusation,  at  first  even 
murder,  by  simply  pleading  his  clergy;  in  which. case  the 
worst  that  could  happen  to  him  was  that  he  was  branded  in 
the  right  hand.  But  the  Constitutions  of  Clarendon  were  a 
great  step  toward  civil  liberty.  Taken  by  us  in  1164,  it  was 
followed  in  so  neighboring  a  country  as  France  only  so  late 
as  a  few  years  ago.  The  priests,  however,  still  managed  to 
retain  their  jurisdiction  over  offences  among  themselves,  as 
well  as  over  marriage,  the  relation  between  the  sexes,  slan- 
der, usury,  and  wills — of  matters  relating  to  the  sacraments, 
and  of  sins. 

Now  this  is  a  very  interesting  matter,  and  were  it  borne  in 
mind  by  our  modern  legislators  they  would  escape  a  good 
deal  of  unintelligent  legislation;  that  is,  the  distinction  be- 
tween a  sin  and  a  crime.  A  sin  is  against  the  church,  or 
against  one's  conscience;  matter,  therefore,  for  the  priest, 
or  one's  spiritual  adviser.  A  crime  is  an  offence  against 
other  men;  that  is,  against  the  state,  in  which  all  are  con- 
cerned. Under  the  intelligent  legislation  of  the  twelfth  cen- 
tury all  matters  which  were  sins,  which  concerned  the  con- 
science, were  left  to  the  church  to  prevent  or  punish.  For 
the  same  reason  usury  was  matter  for  the  priest — because 
it  was  regarded  under  the  doctrines  of  the  Bible  as  a  sin. 
This  notion  prevailed  down  to  the  early  legislation  of  the 
colony  of  Massachusetts,  though  doubtless  many  things 
which  were  then  considered  sins  would  now  be  regarded  as 
crimes,  such  as  bigamy,  for  instance.  The  distinction  is, 
nevertheless,  a  valid  one,  and  we  shall  have  occasion  fre- 
quently to  refer  to  it.  We  shall  find  that  the  defect  of  much 
of  our  modern  legislation — prohibition  laws,  for  instance — 
is  that  they  attempt  to  treat  as  crimes,  as  offences  against  the 
state,  matters  which  are  merely  sins,  offences  against  the 
conscience  or  the  individual  who  commits  them. 

To-day,  the  American  constitutions  all  say  that  a  militia 
is  the  natural  defence  of  a  state  of  free  men.  It  is  interest- 
ing, therefore,  to  find,  hardly  a  century  after  the  Norman 


TAXATION  BY  COMMON  CONSENT  31 

Conquest,  in  1181,  the  Assize  of  Arms,  which  revived  the 
ancient  Saxon  "Fyrd,"  the  word  for  what  we  now  call 
militia;  and,  twenty  years  before  that,  "scutage"  replaced 
military  service.  To  the  burdens  of  the  feudal  system,  com- 
pulsory military  service  and  standing  armies,  our  ancestors 
objected  from  the  very  beginning.  In  a  sense,  scutage  was 
the  beginning  of  taxation;  but  it  was  only  a  commutation  for 
military  service,  much  as  a  man  to-day  might  pay  a  substi- 
tute to  go  to  war  in  times  of  draft.  General  taxation  first 
appears  in  1188  in  the  famous  Saladin  tithe,  the  first  histor- 
ical instance  of  the  taxation  of  personal  property  as  distinct 
from  a  feudal  burden  laid  upon  land.  The  object  of  this  tax 
was  to  raise  money  for  the  crusade  against  the  Sultan  Saladin. 
It  was  followed,  five  years  later,  by  a  tax  of  one-fourth  of 
every  person's  revenue  or  goods  to  ransom  the  king,  Richard 
I  having  gone  to  this  crusade  against  Saladin,  and  been  cap- 
tured on  his  return  by  his  good  friend  and  Christian  ally, 
the  Emperor  of  the  Holy  Roman  Empire.  It  is  interesting  to 
note  that  the  worth  of  the  king  in  those  days  was  considered 
exactly  one-fourth  of  the  common  wealth  of  England.  John 
was  less  expensive;  but  he  was  not  captured.  He  levied  a 
tax  ten  years  later  of  one-seventh  part  on  the  barons,  and 
one-thirteenth  on  every  man. 

In  1213  two  important  things  happened.  The  high-water 
mark  of  domination  by  the  Roman  Church  is  reached  when 
King  John  surrendered  England  to  the  pope,  and  took  it 
back  as  a  fief  of  the  pope  for  a  tribute  of  one  thousand  marks. 
The  same  year  the  other  early  method  of  trial  of  lawsuits 
was  abolished  by  the  Lateran  Council — trial  by  ordeal.  This 
was  the  only  remaining  Saxon  method.  The  Norman  trial 
by  battle  had  already  been  superseded  by  trial  by  jury;  and 
from  this  time  on,  in  practice,  no  other  method  than  a  jury 
remains,  though  trial  by  battle  was  not  abolished  by  statute 
until  the  nineteenth  century. 

And  then  we  come  to  Magna  Charta.  The  first  time  it 
was  granted  was  in  1215  by  John,  but  the  charter  always 


32  POPULAR  LAW-MAKING 

quoted  is  that  promulgated  ten  years  later  under  Henry  III. 
They  were  very  nearly  identical,  but  the  important  omission 
in  the  charter  of  Henry  was  in  regard  to  "scutage"  ("no  aid 
other  than  the  three  customary  feudal  aids  shall  be  imposed 
without  the  common  counsel  of  the  kingdom");  that,  of 
course,  is  the  principle  we  have  discussed  above,  first  put  in 
writing  in  the  charter  of  John.  The  barons  claimed  it  as 
part  of  the  unwritten  law.  But  Henry  III  in  his  charter 
cannily  dropped  it  out — which  is  a  trick  still  played  by 
legislatures  to-day.  This  Magna  Charta  was  confirmed  and 
ratified  something  like  thirty  times  between  the  time  of  its 
adoption  under  John  and  the  time  it  got  established  so  com- 
pletely that  it  wasn't  necessary  to  ratify  it  any  more.  There 
are  four  sections  of  Magna  Charta  that  are  most  important. 
Chapter  7,  the  establishment  of  the  widow's  dower;  of  no 
great  importance  to  us  except  as  showing  how  early  the  Eng- 
lish law  protected  married  women  in  their  property  rights. 
Chapter  13  confirmed  the  liberties  and  customs  of  London 
and  other  cities  and  seaports — which  is  interesting  as  show- 
ing how  early  the  notion  of  free  trade  prevailed  among  our 
ancestors.  It  gave  rise  to  an  immense  deal  of  commercial 
law,  which  has  always  existed  independent  of  any  act  of 
Parliament.  Chapter  17  provided  that  the  common  pleas 
court — that  is,  the  ordinary  trial  court — should  not  follow  the 
king  about,  but  be  held  at  a  place  and  time  certain.  That 
was  the  beginning  of  our  legal  liberty;  because  before  that 
the  king  used  to  travel  about  his  realm  with  his  justiciar,  as 
they  called  his  chief  legal  officer,  and  anybody  who  wanted 
to  have  a  lawsuit  had  to  travel  around  England  and  get  the 
king  to  hear  his  case.  But  the  uncertainty  of  such  a  thing 
made  justice  very  difficult,  so  it  was  a  great  step  when  the 
leading  court  of  the  kingdom  was  to  be  held  in  a  place  certain, 
which  was  at  once  established  in  Westminster.  Minor  courts 
were,  of  course,  later  established  in  various  counties,  though 
usually  the  old  Saxon  county  or  hundred-motes  continued  to 
exist.  Chapter  12  is  the  one  relating  to  scutage,  from  the 


TAXATION   FOR  THE  COMMON  BENEFIT          33 

word  scutum,  shield — meaning  the  service  of  armed  men. 
Just  as,  to-day,  a  man  who  does  not  pay  his  taxes  can  in  some 
States  work  them  out  on  the  road,  so  conversely  in  England 
they  very  early  commuted  the  necessity  of  a  knight  or  land- 
owner furnishing  so  many  armed  men  into  a  money  payment. 
"The  three  customary  feudal  aids"  were  for  the  defence  of 
the  kingdom,  the  building  of  forts,  and  the  building  of  bridges 
— all  the  taxes  usually  imposed  upon  English  citizens  in 
these  earliest  times — all  other  taxation  to  be  only  by  the 
Common  Council  of  the  kingdom.  This  is  the  first  word, 
council;  later,  it  became  "consent";  the  word  conseil  mean- 
ing both  consent  and  council.  "  Council  of  England  "  means, 
of  course,  the  Great  Council.  We  are  still  before  the  time 
when  the  word  Parliament  was  used.  Thus  Magna  Charta 
expresses  it  that  there  should  be  no  taxation  without  "the 
advice"  of  Parliament,  without  legislation;  and  as  Parlia- 
ment was  a  representative  body,  it  is  the  equivalent  of  "taxa- 
tion without  representation."  This  also  was  omitted  in 
Henry  Ill's  charter,  1217,  and  only  restored  under  Edward  I 
in  1297,  a  most  significant  omission.  And  it  is  also  expressed 
in  early  republications  of  the  Great  Charter  that  taxation 
must  be  for  the  benefit  of  all,  "for  public  purposes  only," 
for  the  people  and  not  for  a  class.  On  this  latter  principle 
of  Anglo-American  constitutional  law  one  of  our  great  polit- 
ical parties  bases  its  objection  to  the  protective  tariff,  or  to 
bounties;  as,  for  instance,  to  the  sugar  manufacturers;  or 
other  modern  devices  for  extorting  wealth  from  all  the  people 
and  giving  it  to  the  few.  All  taxation  shall  be  for  the  com- 
mon benefit.  Any  taxation  imposed  for  the  sole  benefit  of 
the  land-owning  class,  for  instance,  or  even  for  the  manu- 
facturing class,  is  against  the  original  principles  of  constitu- 
tional liberty. 

Then  we  come  to  chapter  39,  the  great  "Liberty"  statute. 
"No  freeman  shall  be  taken  or  imprisoned  or  be  disseised 
of  his  freehold  or  his  liberties  or  his  free  customs  [these  im- 
portant words  added  in  1217]  or  be  outlawed  or  exiled  or 


34  POPULAR  LAW-MAKING 

otherwise  destroyed  but  by  lawful  judgment  of  his  peers,  or 
by  the  law  of  the  land."  This,  the  right  to  law,  is  the  corner- 
stone of  personal  liberty.  Any  government  in  any  country 
on  the  Continent  can  seize  a  man  and  keep  him  as  long  as 
it  likes;  it  is  only  Anglo-Saxons  that  have  an  absolute  right 
not  to  have  that  happen  to  them,  and  not  only  are  they 
entitled  not  to  be  imprisoned,  but  their  liberty  of  free  loco- 
motion may  not  be  impeded.  An  American  citizen  has  a 
constitutional  right  to  travel  freely  through  the  whole  republic 
and  also  not  to  be  excluded  therefrom.  Punishment  by  ban- 
ishment beyond  the  four  seas  was  forbidden  in  very  early 
times  in  England.  "Disseised  of  his  freehold,  of  his  liberties 
or  his  free  customs" — that  is  the  basis  of  all  our  modern  law 
of  freedom  of  trade,  against  restraint  of  trade,  and  the  basis 
on  which  our  actions  against  the  modern  trusts  rest;  the  right 
to  freely  engage  in  any  business,  to  be  protected  against 
monopoly  either  of  the  state  or  brought  about  by  competi- 
tors, to  freely  make  one's  own  contracts,  for  labor  or  property, 
to  work  as  long  as  one  chooses,  for  what  wages  one  wills,  and 
all  the  other  liberties  of  labor  and  trade.  "Or  be  outlawed 
or  exiled  or  otherwise  destroyed" — that  is  a  broad  general 
phrase  for  any  interference  with  a  man's  property,  life,  or 
liberty.  "Nor  will  we  go  upon  him" — that  has  been  trans- 
lated in  various  ways,  but  it  means  what  it  says;  it  means 
that  the  king  won't  descend  upon  a  man  personally  or  with 
his  army;  nor  will  we  "send  upon  him" — a  law  officer  after 
him;  "but  by  the  lawful  judgment  of  his  peers,  or  by  the 
law  of  the  land" — that  means  jury  trial,  or  at  least  the  law 
of  the  land,  as  it  then  was;  and  that  phrase,  or  its  later 
equivalent — due  process  of  law — is  discussed  to-day  proba- 
bly in  one  case  out  of  every  ten  that  arise  in  our  highest 
courts.  Many  books  have  been  written  upon  it.  To  start 
with,  it  means  that  none  of  these  things  can  be  done  except 
under  law;  that  is,  except  under  a  lawsuit;  except  under 
a  process  in  a  court,  having  jury  trial  if  it  be  a  civil  case, 
and  also  an  indictment  if  it  be  a  criminal  case,  with  all  the 


"ADMINISTRATIVE"  LAW  NOT  ENGLISH  35 

rights  and  consequences  that  attend  a  regularly  conducted 
lawsuit.  It  must  be  done  by  the  courts,  and  not  by  the 
executive,  not  by  the  mere  will  of  the  king;  and,  still  more 
important  to  us  to-day,  not  by  legislatures,  not  even  by 
Parliament.  "We  will  sell  to  no  man,  we  will  deny  or  delay 
to  no  man,  either  right  or  justice,"  needs  no  explanation;  it 
is  equality  before  the  law,  repeated  in  our  own  Fourteenth 
Amendment. 

Lastly,  we  have  in  cap.  41:  "Merchants  shall  have  safe 
conduct  in  England,  subject  only  to  the  ancient  and  allowed 
customs,  not  to  evil  tolls" — a  forecast  of  the  allowable  tariff 
as  well  as  of  the  spirit  of  modem  international  law.  Finally, 
there  is  a  chapter  on  mortmain,  recognizing  that  land  might 
not  be  given  to  monasteries  or  religious  houses,  and  particu- 
larly under  a  secret  trust;  the  object  being  to  keep  the 
land,  which  made  the  power  of  the  realm,  out  of  the  hands 
of  the  church.  As  far  as  that  part  of  it  goes,  it  is  merely 
historical  to  us,  but  it  developed  into  the  principle  that 
corporations  "which  have  no  souls,"  and  do  not  die,  should 
not  own  too  much  land,  or  have  too  much  power — and  that 
is  a  very  live  question  in  the  United  States  to-day. 

One  must  not  be  misled  by  the  generality  of  the  phrase 
used  in  chapter  39,  and  think  it  unimportant  because  it  looks 
simple.  It  is  hard  for  an  American  or  Englishman  to  get  a 
fresh  mind  on  these  matters.  We  all  grow  up  with  the 
notion  that  nobody  has  the  right  to  arrest  us,  nobody  has 
the  right  to  deprive  us  of  our  liberty,  even  for  an  hour.  If 
anybody,  be  he  President  of  the  United  States  or  be  he  a 
police  officer,  chooses  to  lay  his  hand  on  our  shoulder  or 
attempts  to  confine  us,  we  have  the  same  right  to  try  him,  if 
he  makes  a  mistake,  as  if  he  were  a  mere  trespasser;  and 
that  applies  just  as  much  to  the  highest  authority,  to  the 
president,  to  the  general  of  the  army,  to  the  governor,  as  it 
does  to  a  tramp.  But  one  cannot  be  too  often  reminded  that 
this  principle  is  peculiar  to  English  and  American  civiliza- 
tion. Throughout  the  Continent  any  official,  any  judge, 


36  POPULAR  LAW-MAKING 

anybody  "who  has  a  red  band  around  his  cap,"  who,  in 
any  indirect  way,  represents  the  state — a  railway  conductor, 
a  spy,  a  station  agent — not  only  has  the  right  to  deprive  you 
of  your  freedom,  but  you  have  no  right  to  question  him; 
the  "red  band  around  the  cap"  is  a  final  answer.  Hence 
that  extraordinary  incident,  at  which  all  England  laughed, 
the  Kupenick  robbery.  A  certain  crook  who  had  been  a 
soldier  and  was  familiar  with  the  drill  and  the  passwords, 
obtained  possession  of  an  old  captain's  uniform,  walked  into 
a  provincial  town  of  some  importance,  ordered  the  first  com- 
pany of  soldiers  he  met  to  follow  him,  and  then  with  that 
retinue,  appeared  before  the  town  hall  and  demanded  of  the 
mayor  the  keys  of  the  treasury.  These  were  surrendered 
without  question  and  he  escaped  with  the  money,  represent- 
ing, of  course,  that  he  had  orders  from  the  Imperial  govern- 
ment. It  never  occurred  to  any  one  to  question  a  soldier  in 
full  uniform,  and  it  was  only  some  days  later,  when  the  town 
accounts  were  sent  to  Berlin  to  be  approved,  that  the  robbery 
was  discovered. 

Such  a  thing  could  by  no  possibility  have  happened  in  Eng- 
land or  with  us;  the  town  treasurer  would  at  once  have 
demanded  his  authority,  his  order  from  the  civil  authorities; 
the  uniform  would  have  failed  to  impress  him.  Moreover, 
under  our  local  self-government,  under  our  decentralized  sys- 
tem, nobody  is  above  even  a  town  officer,  or  a  State  or  city 
official  at  the  head  of  his  department,  however  small  it  be, 
except  the  courts.  State  officers  may  not  command  town 
officers,  nor  Federal  officers  State  officers;  nor  soldiers  give 
orders  to  policemen.  The  president,  the  governor,  may  per- 
haps remove  them;  but  that  is  all.  And  even  the  police- 
man acts  at  his  peril,  and  may  be  sued  in  the  ordinary  courts, 
if  he  oversteps  his  authority.  The  notion  that  a  free  citizen 
has  a  right  absolutely  to  question  his  constraint  by  any  State 
officer  is  peculiar  to  the  English  and  American  people,  and 
this  cannot  be  too  often  repeated;  for  it  is  what  foreigners 
simply  fail  to  understand.  And  it  rests  on  this  chapter  in 


GOVERNMENT  ABOVE  LAW  37 


the  Great  Charter,  originally,  as  amplified  and  explained  by 
the  courts  and  later  acts  of  Parliament,  such  as  the  Habeas 
Corpus  Act.  If  a  man  is  arrested  by  any  official,  that  person, 
however  great,  has  to  justify  the  arrest.  In  theory,  a  man 
arrested  has  a  right  to  sue  him  for  damages,  and  to  sue  him 
criminally  for  trespass  ;  and  if  that  man,  be  he  private  indi- 
vidual or  be  he  an  official  or  president,  cannot  show  by  a 
"due  course  of  law'*  —  that  is,  by  a  due  lawsuit,  tried  with  a 
jury  —  that  he  did  it  under  a  duly  enacted  law,  and  that  the 
facts  of  the  case  were  such  as  to  place  the  man  under  that 
law  —  then  that  official,  however  high,  is  just  as  much  liable 
in  the  ordinary  courts,  as  if  he  were  the  merest  footpad 
trying  to  stop  a  man  on  the  highway  —  a  doctrine  almost 
unknown  to  any  country  in  the  world  outside  of  England, 
the  United  States,  and  English  colonies. 


Ill 

RE-ESTABLISHMENT  OF  ANGLO-SAXON  LAW 

Going  on  with  the  statutes,  the  next  thing  we  will  note  is 
a  matter  that  concerns  the  personal  relations.  It  shows 
again  how  eagerly  our  English  common  law  overruled  the 
church  law,  the  canon  law.  Although  the  church  under  the 
pope  always  pretended  that  it  alone  had  authority  to  regulate 
relations  between  the  sexes,  marriage  and  divorce,  we  found 
Henry  I  interfering  with  the  priests  themselves,  and  we  now 
find  as  early  as  1235,  a  secular  statute  which  extends  the  in- 
terference of  the  secular  law  over  the  relations  between  parent 
and  child;  that  is,  as  to  when  a  child  should  be  legitimate 
and  when  not.  We  shall  have  a  great  deal  to  say  later  about 
marriage  and  divorce  laws,  particularly  divorce  laws  as  they 
exist  in  this  country  and  as  they  apparently  are  going  to  be. 
As  early  as  1235  the  secular  courts  interfered  with  the  mar- 
riage relation;  and  the  importance  of  that  is  here:  there  is 
one  great  school  to-day,  including  largely  clergymen  and 
the  divorce  reformers,  so-called,  who  hold  substantially  that 
marriage  is  a  sacrament,  or  at  least  a  status;  that  the  secular 
law  has  nothing  to  do  with  it  and  should  not  be  allowed  to 
grant  a  divorce  except  for  canonical  causes,  i.  e.,  causes 
recognized  by  the  church;  that  it  is  not  like  any  other  con- 
tract, which  can  be  set  aside  with  mutual  consent;  when  a 
marriage  takes  place,  they  say,  it  is  a  sacrament,  or,  at  least, 
a  status  ensues  which  cannot  in  future  be  altered.  Conse- 
quently, it  is  not  like  a  contract;  for  all  contracts  can  be 
abrogated  by  mutual  consent.  On  the  other  hand,  the  most 
radical  people  go  to  the  other  extreme,  and  say  that  mar- 

38 


COMMON   LAW  AGAINST  CIVIL  LAW  39 

riage  is  like  any  other  contract;  it  is  purely  a  civil  con- 
tract, not  a  sacrament,  not  a  status;  just  like  any  other,  and 
some  of  them  go  to  what  is  the  logical  conclusion  of  that 
position  and  say  that  therefore  marriage,  like  any  other  con- 
tract, ought  to  be  ended  at  any  time  by  the  consent  of  both 
parties.  The  extreme  radical  view  leads  to  the  conclusion 
that  a  man  and  woman  ought  to  be  divorced  any  time  by 
merely  saying  that  they  want  to  be;  and  some  States  have 
almost  got  to  this  position  in  their  statutes.  This  may  seem 
a  very  far  cry  from  this  early  statute,  which  does  not  directly 
concern  marriage  but  the  status  of  children;  nevertheless 
it  has  this  bearing — it  is  an  interference  by  Parliament,  by 
the  secular,  legislative  branch  of  government,  with  a  relation 
which  the  church  believed  to  belong  only  to  the  church.  It 
so  happens  that  in  this  instance  the  secular  law  instead  of 
being  liberal  and  kindly  was  extremely  cruel  and  the  reverse 
of  liberal.  Under  the  church  law,  when  a  man  married  a 
woman  by  whom  he  already  had  children,  all  those  children 
were  thereby  made  legitimate,  and  that  certainly  seems  the 
kindly  and  the  Christian  law.  But  the  secular  barons  who 
constituted  the  Parliament,  in  their  jealousy  for  the  com- 
mon law,  took  the  harsher  view,  that  any  children  born 
of  parents  who  are  not  married  at  the  time  they  are  born 
shall  be  illegitimate,  although  their  parents  may  marry  after- 
ward. Beaumont  and  Fletcher,  in  one  of  their  plays,  make 
a  punning  reference  to  that.  It  seems  to  have  struck  Beau- 
mont and  Fletcher  as  it  does  us,  that  it  was  a  cruel  law  for 
the  Parliament  to  make;  when  the  church  for  once  was 
liberal,  it  was  queer  that  the  Parliament  should  be  illiberal; 
so  Beaumont  and  Fletcher,  in  one  of  their  plays,  say:  "The 
children  thou  shalt  get  by  this  civilian  cannot  inherit  by  the 
law."  This  is  interesting,  because  they  use  all  the  words  I 
have  been  trying  to  define;  when  they  say  "the  children 
thou  shalt  get  by  this  civilian"  they  mean  by  this  civilian  a 
person  who  is  under  the  civil,  or  Roman,  or  church  law; 
that  is,  they  mean  to  say,  although  you  marry  a  woman 


40  POPULAR  LAW-MAKING 

who  is  a  church  member  and  under  the  jurisdiction  of  the 
bishop,  etc.,  nevertheless  the  church  law  won't  help  you; 
your  children  by  her  cannot  inherit  by  the  law,  and  the  law 
as  used  by  Beaumont  and  Fletcher  and  as  used  by  me  and 
as  used  in  English  books  means  the  common  law,  the  com- 
mon secular  law,  the  law  of  England,  not  the  civil  or  canon 
law.1  Beaumont  and  Fletcher  evidently  thought  it  was  a 
very  illiberal  statute;  and  our  modern  American  States 
have  all  come  to  Beaumont  and  Fletcher's  conclusion;  they 
have  universally  reversed  the  old  English  statute  and  gone 
back  to  the  church  law,  so  that  throughout  the  United  States 
to-day  a  chilg!  born  before  the  marriage  of  its  parents  is 
legitimate  if  its  parents  afterward  marry.  That  is  true, 
no  matter  how  late  it  is;  if  the  man  marries  her  even  on  his 
death-bed,  all  his  children  are  legitimized. 

In  the  same  Statute  of  Merton  there  is  a  sentence  against 
usury,  "no  usury  permitted  against  minors";  and  there  are 
two  things  to  note  here.  One  is,  that  the  secular  legislature 
is  also  taking  jurisdiction  of  minors,  who  were  claimed  at  that 
time  to  be  solely  under  the  jurisdiction  of  the  church;  and 
the  other  is  the  reference  to  usury.  Mind  you,  usury  is 
interest.  It  didn't  mean  excessive  interest,  as  it  does  now. 
As  you  probably  know,  the  notion  prevailed  in  the  early 
Middle  Ages  that  all  usury — interest — was  a  sin  and  wrong; 
and  even  Ruskin  has  chapter  after  chapter  arguing  that 
principle,  that  it  is  wrong  to  take  interest  for  money.  I 
should  perhaps  add  another  reason  why  interest  was  so  dis- 
liked in  early  England :  There  was  very  little  money  in  early 
England;  and  it  mostly  belonged  to  the  Jews.  It  was  a  good 
deal  as  it  is  in  Russia  to-day;  the  Jews  were  persecuted  in 
Russia  as  in  early  England,  because,  in  the  country  districts 
of  Russia,  the  Jews  have  all  the  money,  and  money-lenders 
are  always  unpopular.  So  in  early  England.  The  great 
barons  had  their  land  and  their  cattle  and  crops,  but  they 

i  "  And  so  all  the  earls  and  barons  answered  with  one  voice,  that  they 
would  not  change  the  laws  of  England." 


USURY  AND  THE  JEWS  41 

had  little  money.  When  they  wanted  money  they  got  the 
value  of  it  out  of  their  tenants.  Nobody  carried  large  sums 
of  money  around  with  him  then,  any  more  than  a  woman 
does  to-day — she  relies  on  her  husband  or  father;  they  went 
to  the  nearest  Jew.  When  the  king  wanted  cash,  he  also 
extorted  it  from  the  Jews.  One  of  the  early  Henrys  said 
seriously,  that  he  regarded  the  Jews  as  a  very  convenient 
sponge !  That  is,  they  sucked  all  the  money  in  the  kingdom 
and  got  it  into  a  place  whence  he  could  easily  get  it  out.  But 
it  made  the  Jews  very  unpopular  with  the  masses  of  the  peo- 
ple and  with  the  Parliament;  hence,  their  great  dislike  of  usury. 
I  doubt  very  much  if  they  would  have  cared  much  about  usury 
if  one  gentleman  had  been  in  the  habit  of  loaning  money  to 
another;  but  all  the  money  came  from  the  Jews,  who  were 
very  unpopular;  and  the  statutes  against  usury  were  really 
made  against  them,  and  that  is  why  it  was  so  easy  to  pass 
them — they  based  it,  doubtless,  on  the  references  to  usury  in 
the  Bible.  Thus  they  got  the  notion  that  it  was  wrong  to 
charge  interest,  or  at  least  extortionate  interest;  more  than  a 
certain  definite  per  cent.;  and  this  is  the  origin  of  all  our 
interest  and  usury  statutes  to-day.  Although  most  econo- 
mists will  tell  you  that  it  is  ridiculous  to  have  any  limit  on 
the  rate  of  interest,  that  the  loan  of  money  may  well  be  worth 
only  four  per  cent,  to  one  man  and  twenty-five  to  another, 
and  that  the  best  way  for  everybody  would  be  to  leave  it 
alone;  nevertheless,  nearly  all  our  States  have  usury  laws. 
We  shall  discuss  that  later;  but  here  is  the  first  statute  on  the 
subject,  and  it  really  arose  because  of  the  feeling  against 
the  Jews.  To  show  how  strong  that  prejudice  was,  there 
was  another  statute  passed  in  the  interest  of  liberality  to 
protect  the  Jews — a  statute  which  provided  liberally  that 
you  must  not  take  from  a  Jew  "more  than  one-half  his 
substance."  And  a  very  early  commentator  tells  us  of  a  Jew 
who  fell  into  a  privy  on  a  Friday,  but  refused  to  be  helped 
out  on  Saturday  because  it  was  his  Sunday;  and  on  Sunday 
he  besought  the  Earl  of  Gloucester  to  pull  him  out,  but  the 


42  POPULAR  LAW-MAKING 

Earl  of  Gloucester  refused  because  it  was  his  Sunday;  so 
the  Jew  remained  there  until  Monday  morning,  when  he  was 
found  dead.  There  is  no  prejudice  against  Hebrews  to-day 
anywhere  in  Europe  stronger  than  existed  even  in  England 
for  the  first  three  or  four  centuries  after  the  Norman  Con- 
quest; and  had  it  not  been  for  the  protection  given  them 
by  the  crown,  probably  they  would  have  been  exterminated 
or  starved  out,  and  in  1289  they  were  all  banished  to  the 
number  of  16,160,  and  their  movables  seized. 

In  1264  citizens  of  towns  were  first  represented  in  the 
Parliament  (in  the  Great  Council,  that  is,  for  the  word 
parliament  is  not  yet  used),  originally  only  composed  of  the 
great  barons,  who  were  the  only  land-owners.  The  notion 
of  there  being  freemen  in  towns  was  slowly  established,  but 
it  was  fully  recognized  by  1264,  and  in  that  year  citizens  of 
towns  first  appeared  in  the  Council.  To-day,  under  the  vari- 
ous Reform  Acts,  tenants  or  even  lodgers  in  towns  are  just 
as  much  represented  as  the  land-owners;  but  the  reform 
which  began  in  1264  took  six  hundred  years  to  be  thoroughly 
established. 

And  now  we  find  the  first  statutory  origin  of  that  utterly 
fallacious  principle — although  alive  to-day — that  the  state, 
in  a  free  country,  a  legislature-governed  country,  has  the 
right,  when  expedient,  to  fix  the  price  of  anything,  wages  or 
other  commodities;  fallacious,  I  say,  except  possibly  as  to 
the  charges  of  corporations,  which  are  given  special  privileges 
by  the  government;  the  principle,  which  prevailed  throughout 
the  Middle  Ages,  of  fixing  the  prices  of  all  things.  In  this 
case  the  price  was  on  bread;  but  you  find  now  for  many  cen- 
turies an  attempt  to  fix  the  price  of  almost  everything;  and 
of  labor,  too,  what  wages  a  man  should  be  paid.  It  lasted 
persistently  for  centuries  and  centuries,  and  it  was  only  un- 
der the  influence  of  modern  political  economy,  Adam  Smith 
and  other  quite  modern  writers,  that  the  principle  that  it 
was  possible  to  fix  prices  of  commodities  was  utterly  eradi- 
cated from  the  English  mind.  And  you  hardly  got  it  out 


FIXING  OF  PRICES  AND  SUMPTUARY   LAWS       43 

of  England  before  it  reappeared  in  the  United  States.  It 
is  not  a  new-fangled  principle.  You  find  the  newspapers 
commonly  talk  about  fixing  prices  by  law  as  if  it  were  some- 
thing utterly  unheard  of  and  utterly  new.  It  is  not  so.  It 
is  on  the  contrary  as  old  as  almost  any  legislation  we  have, 
and  you  can  make  no  argument  against  it  on  that  ground. 
It  has  always  been  the  custom  of  our  ancestors  to  regulate 
the  prices  of  wages  by  law,  and  the  notion  that  it  was  either 
unconstitutional  or  inexpedient  dates  from  a  very  few  years 
back;  yet  all  such  attempts  at  legislation  have  utterly  dis- 
appeared from  any  modern  statute-book.  In  no  State  of 
our  forty-six  States  is  any  one  so  unintelligent,  even  in  in- 
troducing bills  in  the  legislature,  as  to-day  to  propose  that 
the  price  of  a  ton  of  coal  or  a  loaf  of  bread  shall  be  so 
much.  Nor  is  any  modern  legislature  so  unintelligent  or  so 
oppressive  as  to  propose  sumptuary  laws;  that  is,  to  prescribe 
how  expensively  a  man  or  woman  must  dress;  but  in  the 
mediaeval  times  those  were  thought  very  important.  Every 
class  in  England  was  then  required  by  law  to  have  exactly 
so  many  coats,  to  spend  so  much  money  on  their  dress,  so 
much  on  their  wives'  dress,  and  certain  men  could  have 
fine  cloth  and  others  coarse  cloth;  everything  was  graded, 
even  to  the  number  of  buttons  on  clothes,  and  they  went  so 
far  even  as  to  try  in  some  early  legislation  to  say  what  men 
should  have  to  eat;  the  number  of  courses  a  man  should 
have  for  his  dinner  were  prescribed  by  law  at  one  time  in 
England,  varying  according  to  the  man's  rank.  All  such 
legislation  has  absolutely  vanished  and  probably  no  one  need 
know  that  it  existed — but  that  when  efforts  are  made,  as 
they  sometimes  are,  by  our  more  or  less  uneducated  members 
of  legislatures  to  introduce  bills  of  such  a  kind,  it  is  very  im- 
portant for  us  to  know  that  those  experiments  have  been 
tried  and  have  failed,  having  proved  to  be  either  imprac- 
ticable or  oppressive  or  not  for  the  general  benefit.  This 
is  the  importance  of  these  early  laws,  even  when  obsolete; 
because  we  never  know  when  some  agitator  may  not  pop  up 


44  POPULAR  LAW-MAKING 

with  some  new  proposal — something  he  thinks  new — which 
he  thinks,  if  adopted,  will  revolutionize  society.  If  you  can 
show  him  that  his  new  discovery  is  not  only  not  new,  but  was 
tried,  and  tried  in  vain,  during  two  or  three  centuries  in  the 
life  of  our  own  ancestors,  until  an  enraged  public  abolished 
it,  it  will  destroy  any  effect  that  he  is  likely  to  make  upon  the 
average  legislature. 

The  first  general  example  of  an  English  law  fixing  the 
price  of  a  commodity  is  in  1266,  the  Assize  of  Bread  and 
Beer.  That  fixed  the  price  of  bread  according  to  the  cost 
of  wheat,  a  sliding  scale,  in  other  words;  when  a  bushel  of 
wheat  cost  so  much,  a  loaf  weighing  a  certain  amount  must 
cost  so  much,  etc.  But  you  must  not  confound  that  with 
the  modern  law  that  still  exists  in  England,  and  in  some 
States  and  cities  here,  merely  regulating  the  size  of  a  loaf. 
That  is  perfectly  proper,  reasonable  legislation,  done  merely 
for  the  purpose  of  protecting  the  public  and  preventing 
fraud.  In  England,  for  instance,  there  is  a  certain  standard 
loaf  known  as  a  quartern  loaf,  and  in  order  to  prevent  poor 
people  being  cheated  it  is  prescribed  by  city  ordinance  that 
the  quartern  loaf  shall  weigh  so  much,  shall  contain  so  many 
ounces  of  flour.  We  do  have  similar  laws  saying  how  much 
a  bushel  of  potatoes  shall  weigh,  how  much  a  barrel  of  flour 
shall  weigh.  That  isn't  fixing  the  price;  it  is  only  fixing  a 
uniform  size  so  that  the  public  may  not  be  cheated  in  its 
dealings,  and  one  must  not  take  such  a  law  as  justifying 
the  fixing  of  prices. 

In  the  year  1266  I  find  the  first  statute  in  the  French  lan- 
guage, Norman  French;  before  that  they  were  all  in  Latin; 
and  they  lasted  in  French  for  some  four  or  five  hundred 
years,  and  then  they  were  put  in  English.  The  Statute  of 
Marlborough,  1267,  is  a  very  important  one  historically, 
but  it  does  not  concern  us,  because  it  mainly  had  to  do  with 
the  ownership  of  land,  the  tenure  of  land  in  England,  an 
extremely  important  subject,  but  one  that  is  obsolete  here. 
Then  we  have  something  about  the  trial  of  clerks  for  murder. 


THE  BENEFIT  OF  CLERGY  45 

Of  course  the  word  clerk  there  means  not  what  we  mean 
by  a  clerk,  but  a  person  who  could  read  and  write;  and 
nothing  more  than  that.  It  originally  meant  persons  in 
holy  orders,  who  were  called  clerks  (clerics),  but  there  got 
to  be  clerks  who  were  not  in  holy  orders.  Originally  only 
priests  could  read  and  write.  No  one  else  knew  how,  except 
possibly  great  personages  like  kings,  and  consequently  it  was 
the  same  thing  whether,  when  you  said  a  clerk,  you  meant  a 
person  who  could  read  and  write  or  a  priest.  But  when 
there  got  to  be  people  who  could  read  and  write  and  who 
were  not  priests,  it  became  an  important  distinction.  There 
was  a  privilege  in  England  known  as  the  "  benefit  of  the 
clergy";  if  any  clerk  was  tried  for  a  criminal  offence,  no  mat- 
ter what,  all  he  had  to  do  was  to  state  that  he  was  a  priest  and 
he  was  at  once  set  free.  In  other  words,  he  could  not  be  pun- 
ished. That  doesn't  concern  us;  but,  I  suppose,  it  resulted 
from  the  old  notion  that  all  priests  were  subject  only  to 
Rome,  and  to  the  church  courts,  and  not  to  the  civil  law 
courts;  and  consequently  when  a  priest  was  attempted  to  be 
tried  in  a  civil  law  court,  it  was  a  way  of  doing  what  we 
should  call  "pleading  to  the  jurisdiction"  of  the  court. 
Later,  as  time  went  on,  in  England  it  was  greatly  abused, 
especially  when  there  got  to  be  clerks  who  were  not  priests. 
When  it  meant  anybody  who  could  read  and  write,  and  any- 
body who  had  committed  a  murder  had  only  to  say,  "I  can 
read  and  write,"  and  be  set  free,  it  led  to  an  extraordinary 
state  of  things.  So,  from  time  to  time,  they  modified  the 
benefit  of  the  clergy,  until  ultimately  it  was  abolished  en- 
tirely; first  by  not  allowing  it  in  high  offences  like  murder; 
then  by  imposing  certain  slight  punishment — they  were 
"burned  in  the  hand";  then  by  applying  it  only  to  the  first 
offence,  and  so  on,  until  they  got  rid  of  it  entirely;  and  this 
Statute  of  Maryborough  is  simply  one  of  the  first  of  that  long 
chain  of  statutes  which  finally  did  away  with  it  and  pre- 
vented people  from  getting  rid  of  a  criminal  prosecution  merely 
because  they  knew  how  to  read  and  write  or  were  priests. 


46  POPULAR  LAW-MAKING 

In  1275  I  note  the  first  use  of  the  word  parliament.  I 
have  used  it  from  the  beginning,  but  it  is  important  to  re- 
member that  the  thing  was  not  called  parliament  until  1275. 
Before  that  it  was  called  the  Great  Council  or  the  King's 
Council,  and  in  Saxon  times  the  Witenagemot. 

Then  we  come  down  to  the  Statute  of  Westminster  I. 
That  is  considered  a  great  landmark  in  statutory  legislation 
mainly  because  it  is  the  first  attempt  to  establish  a  code,  or, 
at  least,  a  large  collection  of  the  laws  of  England.  It  is  an 
attempt  to  put  what  they  supposed  to  be  a  good  part  of  them 
into  writing.  We  have  no  codes  in  this  country,  as  a  rule; 
nor  to-day  in  England;  the  ordinary  Anglo-Saxon  does  not 
believe  in  codes.  It  is  the  French  and  Germans  who  have 
codes.  Nevertheless,  you  often  find  collections  of  statutes. 
It  is  important  not  to  confound  these  things  with  codes,  be- 
cause they  never  pretend  to  be  complete.  Many  States  in 
this  country  never  make  revision  of  the  statutes.  Neverthe- 
less, every  ten  or  twenty  years  they  will  print  a  collection 
of  the  statutes  arranged  alphabetically.  In  some  States,  as 
in  Massachusetts,  those  collections  are  official;  but  in  other 
States  they  are  simply  matters  of  private  enterprise.  .They 
are  of  no  authority,  and  if  they  are  wrong  it  is  no  protec- 
tion to  you.  You  are  bound  to  know  the  laws.  These  early 
so-called  codes,  especially  this  code  of  Edward  I,  although  it 
caused  him  to  be  called  the  English  Justinian,  because  it 
was  the  first  attempt  of  putting  any  large  body  of  the  Anglo- 
Saxon  laws  in  writing  at  all,  are  still  not  at  all  codes  in  the 
technical  sense.  This  one  was  merely  a  collection  of  a 
certain  number  of  laws  reduced  to  writing  and  re-enacted 
by  Edward  I.  We  note  here  the  phrase  "common  right 
shall  be  done  to  rich  and  poor,"  rather  an  interesting  land- 
mark; it  shows  what  progress  was  being  made  by  the  people 
in  establishing  their  rights  as  freemen  and  to  equal  laws. 
For  the  laws  of  Norman  England  mainly  applied  to  land- 
owners, and  were  made  by  the  barons,  the  only  people  that 
had  property;  there  was  but  a  small  class  in  those  early 


THE  FREEDOM  OF  LABOR  47 

days  between  the  land-owners  and  actual  serfs,  villeins,  who 
were  practically  attached  to  the  soil,  in  a  condition  almost 
of  servitude;  they  did  service,  were  not  paid  wages,  and 
couldn't  leave  the  place  where  they  were  born — and  both 
these  are  tests  of  slavery.  But  in  the  first  two  centuries 
after  the  Conquest  the  number  of  freemen  very  rapidly 
increased;  men  who  were  not  property  owners,  not  land- 
owners, but  still  freemen.  Especially  it  increased  in  the 
towns,  for  the  towns  very  early  established  their  right  to 
be  free,  far  earlier  than  the  country.  It  was  very  early  es- 
tablished that  the  citizens  of  any  town,  that  is,  the  mem- 
bers of  the  guild  of  the  town,  duly  admitted  to  the  guild, 
were  freemen,  and  probably  before  this  statute.  But  this 
is  interesting  as  a  recognition  of  the  fact  that  there  were 
free  poor  people — people  without  property,  who  nevertheless 
were  neither  villeins  nor  serfs — and  that  they  were  entitled 
to  equality  before  the  law,  just  as  we  are  to-day,  as  early 
as  1275.  Otherwise,  the  Statute  of  Westminster  concerns 
mainly  the  criminal  law.  There  is  one  very  important  pro- 
vision— because  it  has  been  historically  followed  from  then 
down  to  now — that  there  shall  be  no  disturbance  of  the 
elections.  Elections  shall  be  free  and  unimpeded,  uncon- 
trolled by  any  power,  either  by  the  crown,  or  Parliament,  or 
any  trespasser.  That  has  been  a  great  principle  of  English 
freedom  ever  since,  and  passed  into  our  unwritten  constitu- 
tion over  here,  and  of  course  has  been  re-enacted  in  many 
of  our  laws.  That  is  the  feeling  which  lay  behind  those 
statutes  which  we  enacted  after  our  slaves  were  freed,  for 
the  making  of  elections  free  in  the  South;  for  protecting 
negroes  in  the  act  of  voting  and  preventing  interference  with 
them  by  the  Ku  Klux  Klan.  The  Democratic  party  strongly 
objected  and  objects  still  to  such  legislation  on  the  part  of 
the  government,  on  the  ground  that  the  right  of  regulating 
elections  belongs  to  the  States  and  not  to  the  Federal  govern- 
ment ;  which,  constitutionally  speaking,  before  the  Fifteenth 
Amendment  at  least,  was  true.  They  do  not,  of  course, 


48  POPULAR  LAW-MAKING 

deny  this  great  old  English  principle  that  elections  must  be 
free  and  must  not  be  intimidated  or  controlled  by  anybody; 
but,  they  say,  we  left  the  machinery  of  the  elections  in  the 
hands  of  the  States  when  we  adopted  the  Federal  Constitu- 
tion ;  and  although  at  our  State  elections  some  of  the  officers 
elected  are  Federal  officers — as,  for  instance,  the  President 
of  the  United  States,  or  rather  the  presidential  electors,  and 
members  of  Congress — nevertheless,  when  we  adopted  the 
Federal  Constitution,  the  founders  chose  to  rely  for  the 
machinery  of  a  fair  and  free  election  upon  the  officers  of 
States;  so  that  the  Federal  government  has  nothing  to  do 
with  it,  and  has  no  business  to  send  Federal  troops  to  the 
South;  and  they  called  such  bills  the  "force"  bill.  In  theory, 
of  course,  those  elections  were  controlled  in  these  bills 
just  as  much  in  the  North  as  in  the  South;  but  there  being 
practically  no  complaint  in  the  North  that  the  negroes  were 
not  allowed  to  vote,  as  a  matter  of  fact  the  strength  of  the 
Federal  government  was  only  invoked  in  the  Southern 
States. 

"Fines  are  to  be  reasonable."  You  find  that  principle 
in  all  our  constitutions  to-day  in  the  clause  that  there  shall 
be  no  cruel  or  unusual  punishments,  and  that  fines  shall  be 
proportionate  to  the  offence;  this  principle  is  expressed  also  in 
Magna  Charta. 

Then  slander  and  rape  were  made  criminal  at  common 
law;  before  this  only  the  church  took  jurisdiction.  Slander 
is  the  imputing  of  crime  to  a  person  by  speech,  by  word  of 
mouth.  If  it  be  a  written  imputation,  it  is  libel  and  not 
slander.  Then  in  this  statute  also  we  find  the  first  import  tax 
upon  wool.  The  constitutionality  of  revenue  taxes,  duties, 
or  taxes  on  imports,  was  once  disputed  by  our  parties;  one 
party  denying  the  constitutional  right  to  impose  any  tax  upon 
imports  except  for  the  strict  purpose  of  raising  necessary  rev- 
enue; the  argument  being  perfectly  logical  and  based  upon 
the  constitutional  principle  we  already  have  had  that  all 
taxation  must  be  for  the  common  benefit.  Democrats  argued 


EARLIEST  DUTIES  ON  IMPORTS  49 

that  if  a  tax  upon  imports  was  imposed  to  raise  the  necessary 
revenue,  that  is  for  the  common  benefit;  but  if  it  was  im- 
posed, as  it  avowedly  is  imposed  in  Republican  legislation,  for 
the  purpose  of  benefiting  certain  industries  or  classes,  why 
that,  of  course,  is  not  for  the  common  or  general  benefit  and 
therefore  unconstitutional.  The  trouble  with  this  position  is 
that  early  English  laws  were  prohibitive  of  imports — that  is, 
they  were  imposed  for  prohibition  before  they  allowed  impor- 
tation on  payment  of  duties.  This  Statute  of  Westminster 
is  a  landmark,  as  showing  how  slow  the  Commons  were  in 
even  allowing  taxation  upon  imports  at  all.  They  earlier 
allowed  the  ordinary  direct  taxes.  All  that  the  Norman 
kings  got  they  got  with  the  consent  of  Parliament,  direct 
taxes,  for  the  common  benefit;  but  they  struggled  for  two 
centuries  before  they  got  the  permission  of  Parliament  to 
impose  duties,  taxes  upon  imports;  here  first  they  finally 
got  it  on  wool,  the  thing  produced  of  most  value  of  any- 
thing in  England;  and  consequently  an  important  pro- 
tective duty.  It  is  a  curious  historical  fact  that  this  arti- 
cle, wool,  seems  to  be  the  chief  bone  of  contention  ever  since; 
in  our  tariffs  nothing  has  been  more  bitter  than  the  dis- 
pute on  wool;  the  duty  on  wool  is  the  shibboleth  of  the 
extreme  protectionist.1  Ohio,  which  is  the  home  of  the 
strong  protection  feeling,  regards  the  duty  on  wool  as  the 
corner-stone  to  the  whole  fabric.  It  is  argued  that  "a 
cheap  coat  makes  a  cheap  man."  In  the  East  the  feeling 
is  that  the  duty  on  wool  makes  clothing  poor  and  shoddy, 
and  the  prices  excessively  high  for  the  poor.  It  is  odd  to 
find  that  the  very  first  thing  that  did  make  trouble  was 
the  duty  on  wool,  and  it  is  still  making  the  same  trouble 
to-day. 

There  is  another  interesting  clause  in  this  statute;  I  don't 
know  whether  in  this  country  so  much  as  there,  but  it  is  in 
England  the  almost  universal  custom  of  ships  to  have  a  dog 

1  The  "ancient"  customs  were  on  wool,  woolfels  and  leather;  all  other 
were  "  evil "  customs.  Holt,  afterward  C.  J.,  in  "  The  Great  Case  of  Monop- 
olies." 


50  POPULAR  LAW-MAKING 

or  cat  on  board.  You  never  will  find  a  coasting  vessel 
without  a  dog  or  cat,  usually  both;  and  I  believe  it  is  for 
this  strange  historical  reason,  as  shown  in  this  Statute  of 
Westminster  I:  In  those  days  all  wrecks  belonged  to  the 
king.  (Pretty  much  everything,  in  fact,  did  belong  to  the 
king,  except  the  land  that  was  held  by  book  or  charter,  or 
such  personal  property  as  a  man  had  in  his  own  house — all 
mines,  all  franchises,  all  monopolies,  even  all  whales  and  stur- 
geons that  were  thrown  up  on  the  beach — the  head  to  the 
king  and  the  tail  to  the  queen.)  So  all  wrecks  belonged  to 
the  king.  The  result  was,  that  whenever  any  vessel  went 
ashore  the  king's  officers  seized  it;  and  naturally  the  owner 
of  the  vessel  didn't  like  that,  because  it  very  often  happened 
that  the  vessel  was  perfectly  good  and  could  be  easily  re- 
paired and  the  cargo  saved.  It  is  still  a  great  principle  in 
marine  law  that  if  one-half  of  the  cargo  is  good,  the  man 
who  owns  the  vessel  cannot  surrender  and  claim  from  the 
insurance  company  as  a  total  loss;  it  is  important  still  how 
much  of  a  wreck  a  wreck  is.  But  in  those  days  the  king, 
even  if  the  vessel  was  stranded  and  could  be  raised,  would 
seize  it  on  the  plea  it  was  a  wreck.  The  man  who  owned 
the  ship  would  say  she  is  perfectly  seaworthy;  and  then 
would  come  the  dispute  as  to  what  a  wreck  was.  Or  even 
when  the  vessel  was  destroyed,  a  great  part  of  the  cargo  might 
be  saved,  and  the  owner  of  the  vessel  thought  it  very  unjust 
that  the  king  should  claim  it  all.  So  the  Parliament  of 
England  established  as  part  of  the  liberties  of  the  English 
merchant  or  trader  that  he  should  still  have  a  property  in  his 
wreck;  and  then  the  question  came  up  as  to  what  was  a  wreck. 
It  was  generally  admitted  that  when  all  hands  were  lost,  that 
was  a  wreck;  but  they  wanted  to  get  as  narrow  a  definition 
as  they  could,  so  they  got  Parliament  to  establish  this  law, 
that  in  future  nothing  shall  be  considered  a  wreck  out  of 
which  a  cat  or  a  dog  escapes  alive;  and  from  that  time  until 
the  present  day  no  vessel  coasts  about  England  without  car- 
rying a  cat  or  dog. 


THE  LAW  OF  WRECKS  51 

But  the  great  achievements  of  legislation  up  to  1300 
remain  the  re-establishment  of  English  law,  as  shown  in  the 
great  charters  of  John,  Henry  III,  and  the  confirmation 
of  Edward  I.  And  Magna  Charta  had  to  be  read  once  a 
year  (like  our  Declaration  of  Independence),  and  for  breach 
of  it  a  king  might  be  excommunicated ;  and  Henry  III  him- 
self, according  to  Gobbet,  feared  that  the  Archbishop  of 
Canterbury  was  about  to  do  so. 


IV 


EARLY  LABOR  LEGISLATION,   AND   LAWS 
AGAINST  TRUSTS 

(1275)  Far  the  most  important  phrase  to  us  found  in  the 
Statute  of  Westminster  I,  save  perhaps  that  common  right 
should  be  done  to  rich  and  poor,  is  to  be  found  in  this  sen- 
tence: "Excessive  toll,  contrary  to  the  common  custom  of 
the  realm,"  is  forbidden.  The  statute  applies  only  to  market 
towns,  but  the  principle  established  there  would  naturally 
go  elsewhere,  and  indeed  most  towns  where  there  was  any 
trade  were,  in  those  days,  market  towns.  Every  word  is 
noticeable:  "Excessive  toll" — extortion  in  rates.  As  this 
statute  passed  into  the  common  law  of  England  and  hence 
our  own,  it  has  probably  always  been  law  in  America  except, 
possibly,  in  those  few  States  which  expressly  repealed  the  whole 
common  law1  and  those  where  civil  law  prevailed.2  It  was 
therefore  equally  unnecessary  to  adopt  new  statutes  provid- 
ing against  extortion  or  discrimination,  for  the  last  part  of 
the  phrase  "contrary  to  the  common  custom  of  the  realm" 
means  discrimination.  But  this  is  one  of  the  numerous 
cases  where  our  legislatures,  if  not  our  bar  and  bench,  erred 
through  simple  historical  ignorance.  They  had  forgotten 
this  law,  or,  more  charitably,  they  may  have  thought  it 
necessary  to  remind  the  people  of  it.  There  has  been  a 
recent  agitation  in  this  country  with  the  object  of  com- 
pelling great  public-service  companies,  such  as  electric 
lighting  or  gas  companies,  to  make  the  same  rates  to  con- 

1  Florida,  Texas,  and  the  old  Territory  of  Dakota. 

2  Louisiana,  New  Mexico,  and  Arizona. 

52 


EXTORTION  AND  DISCRIMINATION  53 

sumers,  large  or  small.  This  also  was  very  possibly  the  com- 
mon law,  and  required  no  new  statutes;  there  are  cases  re- 
ported as  far  back  as  the  fourteenth  and  fifteenth  centuries 
where,  for  instance,  a  ferryman  was  punished  for  charging 
less  for  the  ferriage  of  a  large  drove  of  sheep  or  cattle  than 
for  a  smaller  number,  "contrary  to  the  common  custom  of 
the  realm."  Nine  years  before  this  statute  is  the  Assize 
of  Bread  and  Beer,  attempting  to  fix  the  price  of  bread  accord- 
ing to  the  cost  of  wheat,  but  notable  to  us  as  containing 
both  the  first  pure-food  statute  and  the  first  statute  against 
"forestalling." 

Now  forestalling,  regrating,  and  engrossing  are  the  early 
English  phrases  for  most  of  the  unlawful  or  unmoral  actions 
which  we  ascribe  to  the  modern  trust.  In  fact,  there  is 
hardly  one  legal  injury  which  a  trust  is  said  to  commit  in 
these  days  which  cannot  be  ranked  under  those  three  heads, 
or  that  of  monopoly  or  that  of  restraint  of  trade. 

"Forestalling"  is  the  buying  up  provisions  on  the  way 
to  a  market  with  intent  to  sell  at  a  higher  price;  and  the 
doctrine  applied  primarily  to  provisions,  that  is  to  say, 
necessaries  of  life.  Precisely  the  same  thing  exists  to-day, 
only  we  term  it  the  buying  of  futures,  or  the  attempt  to 
create  a  corner.  We  shall  find  that  the  buying  of  futures, 
that  is  to  say,  of  crops  not  yet  grown  or  outputs  not  yet  cre- 
ated, is  still  obnoxious  to  many  of  our  legislatures  to-day, 
and  has  been  forbidden,  or  made  criminal,  in  many  States. 
"Regrating"  is  defined  in  some  of  the  early  dictionaries  as 
speculating  in  provisions;  the  offence  of  buying  provisions 
at  a  market  for  the  purpose  of  reselling  them  within  four 
miles  of  the  place.  The  careful  regulation  of  markets  and 
market  towns  that  existed  in  early  times  in  England  would 
not  suffer  some  rich  capitalist  to  go  in  and  buy  all  that  was 
offered  for  sale  with  intent  -of  selling  it  to  the  same  neigh- 
borhood at  a  higher  price.  Bishop  Hatto  of  the  Rhine,  you 
may  remember,  paid  with  his  life  for  this  offence.  The  prej- 
udice against  this  sort  of  thing  has  by  no  means  ended  to-day. 


54  POPULAR  LAW-MAKING 

We  have  legislation  against  speculation  in  theatre  tickets,  as 
well  as  in  cotton  or  grain.  "Engrossing"  is  really  the  result 
of  a  successful  forestalling,  with  or  without  regrating;  that 
is  to  say,  it  is  a  complete  "corner  of  the  market";  from  it 
our  word  "grocer"  is  derived.  Such  corners,  if  completely 
successful,  would  have  the  public  at  their  mercy;  luckily 
they  rarely  are;  the  difficulty,  in  fact,  begins  when  you  begin 
to  regrate.  But  in  artificial  commodities  it  is  easier;  so  in 
the  Northern  Pacific  corner,  a  nearly  perfect  engrossing;  the 
shares  of  stock  went  to  a  thousand  dollars,  and  might  have 
gone  higher  but  for  the  voluntary  interference  of  great  finan- 
ciers. Leiter's  Chicago  corner  in  wheat,  Sully's  corner  in 
cotton,  were  almost  perfect  examples  of  engrossing,  but  failed 
when  the  regrating  began.  All  these  tend  to  monopoly,  and 
act,  of  course,  in  restraint  of  trade;  the  broader  meanings 
of  these  two  latter  more  important  principles  we  leave  for 
later  discussion. 

(1285)  The  Statute  of  Bakers,  or  Assize  of  Bread  and  Ale, 
is  by  some  assigned  to  the  13th  of  Edward  I.  If  so,  we 
find  all  these  great  modern  questions  treated  by  statute  in 
the  reign  of  the  same  great  law-making  king,  Edward  I,  who 
well  was  called  the  "English  Justinian";  for,  in  1305,  twenty 
years  later,  we  have  the  first  Statute  of  Conspiracy.  This 
statute  only  applies  to  the  maintaining  of  lawsuits;  but  the 
Statute  of  Laborers  of  1360  declares  void  all  alliances  and 
covins  between  masons,  carpenters,  and  guilds,  chapters  and 
ordinances;  and  from  this  time  on  the  statutes  recognize  the 
English  common  law  of  conspiracy  in  general  words. 

As  this  is  one  of  the  most  important  doctrines  of  the 
English  law,  and  moreover  one  which  is  most  criticised  to-day 
by  large  interests,  both  of  capital  and  labor,  it  will  be  wise 
to  dwell  upon  its  historical  and  logical  origin  in  this  place, 
though  we  shall  consider  it  at  length  later  as  it  touches 
various  fields  of  legislation.  It  is  notable  for  two  most  im- 
portant principles:  first,  that  it  recognizes  the  great  menace 
of  combined  action,  and  both  forbids  and  punishes  combina- 


ORIGIN  OF  LAW  OF  CONSPIRACY  55 

tions  to  do  an  act  which  might  be  lawful  for  the  individual; 
second,  of  all  branches  of  civil,  as  distinct  from  criminal,  law, 
it  is  the  one  which  most  largely  recognizes  intent;  that  is  to 
say,  the  ethical  purposes  of  the  combination.  It  has  been 
urged  in  some  judicial  opinions  that  in  matters  of  boycotts, 
strikes,  etc.,  the  law  cannot  go  into  the  motive;  this  argu- 
ment obviously  proves  too  much,  for  it  is  no  more  easy  to 
examine  motives  in  the  criminal  law,  and  this  is  done  all  the 
time.  A  homicide,  for  instance,  will  vary  in  all  degrees 
between  justifiable  guilt  or  manslaughter  up  to  murder  in  the 
first  degree,  according  to  the  motive  which  prompted  the  act. 
It  is  really  no  more  difficult,  and  the  reported  cases  do  not 
show  it  to  be  any  more  difficult,  to  consider  the  motive  be- 
hind a  combination  of  men  or  the  motive  inspiring  a  series 
of  related  acts.  The  real  trouble  comes  only  in  the  Federal 
anti-trust  act,  because  the  machinery  of  this  clumsy  statute, 
a  bill  in  equity,  imposes  upon  judges  the  duty  of  finding 
the  facts. 

This  doctrine  of  conspiracy  is  so  old  in  England  that  I 
am  unable  to  trace  it  to  its  source.  From  the  wording  of 
repeated  early  statutes  it  would  seem  that  they  recognized 
this  law  of  conspiracy  as  already  existing  and  merely  applied 
it  to  new  forms,  such  as,  for  instance,  the  combination  of 
masons,  carpenters,  and  guilds,  just  mentioned.  It  is,  per- 
haps, not  to  us  important  whether  it  is  originally  based  on 
common  law  or  these  early  statutes,  for  these  statutes  are 
quite  early  enough  to  have  passed  into  the  common  law  of 
England,  and  consequently  into  the  common  law  in  this 
country.  Moreover,  early  statutes  merely  express  the  com- 
mon law;  therein  lies  their  significance.  Now,  many  State 
laws  and  constitutions,  as  well  as  most  State  courts,  recog- 
nize that  the  common-law  statutes  of  England  existing  at 
least  before  1775,  if  not  1620,1  are  common  law  in  the 
States  of  this  Union.  In  a  general  way,  any  statute  that 

1  1607  (Virginia,  West  Virginia,  Illinois,  Indiana,  Missouri,  Arkansas,  Col- 
orado, Wyoming);  1776  (Florida,  Maryland,  Rhode  Island,  Pennsylvania). 
None,  however,  are  law  in  New  York. 


56  POPULAR  LAW-MAKING 

antedates  the  time  of  our  settlement  we  took  over  as  part  of 
our  common  law. 

We  are  now  coming  also  to  that  great  range  of  statutes, 
which,  on  the  one  hand,  control  labor  and  regulate  the  rights 
of  the  laborer,  both  in  his  prices  and  in  his  hours;  and,  on 
the  other,  those  statutes  relating  to  what  we  call  "trusts," 
conspiracy,  and  trades-unions,  which  have  made  common- 
law  principles  which  are  to-day,  all  of  them,  invoked  by  our 
courts;  and  form  the  precedents  of  practically  all  our  modern 
legislation  on  matters  affecting  labor,  labor  disputes,  injunc- 
tions, strikes,  boycotts,  blacklists,  restraint  of  trade,  and 
trusts — in  fact,  the  largest  field  of  discussion  now  before  the 
mind  of  the  American  people.  The  subjects  are  more  or 
less  connected.  That  is,  you  have  the  growth  of  legislation 
as  to  laborers  on  the  one  hand,  and  on  the  other  you  have 
the  growth  of  this  legislation  as  to  combinations  or  con- 
spiracies, trades-unions,  guilds,  etc. 

(1304)  Now  let  us  begin  at  that  first  statute  of  conspiracy, 
and  find  what  the  definition  of  a  conspiracy  is;  because  it 
is  a  very  important  question  to-day,  whether  we  are  going  to 
stick  to  the  old  common-law  idea  or  not.  The  very  title  of 
this  statute  is  "A  definition  of  conspirators,"  and  it  begins: 
"Conspirators  be  they  that  do  confeder  or  bind  themselves 
together  by  oath,  covenant  or  other  alliance"  either  to  indict 
or  maintain  lawsuits;  "and  such  as  retain  men  in  the  Countrie 
with  Liveries  or  Fees  for  to  maintain  their  malicious  Enter- 
prises, and  this  extends  as  well  to  the  Takers  as  to  the  Givers." 
And  as  it  gradually  assumed  shape  and  got  definite  and 
broad,  the  idea,  we  will  say,  by  1765,  when  Blackstone  wrote, 
was  this :  A  conspiracy  is  a  combination  by  two  or  more  men, 
persons  or  companies,  to  bring  about,  either  an  unlawful  result 
by  means  lawful  or  unlawful,  or  a  lawful  result  by  unlawful 
means.  Now  so  far  the  definition  is  admitted.  Everybody 
agrees,  both  the  labor  leaders  and  the  courts,  on  that  defini- 
tion— that  when  two  or  more  people  combine  together  to 
effect  an  unlawful  object,  it  is  a  conspiracy;  which  is  both 


THE  MODERN   DEFINITION  57 

a  criminal  offence  under  the  laws  of  the  land  everywhere,  and 
also  gives  the  party  injured  a  right  to  damages,  that  is,  what 
we  call  a  civil  suit;  and  furthermore  no  act  is  necessary. 
There  is  no  doubt  about  that  part  of  the  definition.  Or 
where  they  combine  to  get  a  lawful  end  by  unlawful  means, 
as,  for  instance,  when  laborers  combine  to  get  their  employer 
to  raise  their  wages  by  the  process  of  knocking  on  the  head 
all  men  that  come  to  take  their  places,  that  is  gaining  a  law- 
ful end  by  unlawful  means,  by  intimidation — and  is  a  con- 
spiracy. But  now  the  whole  doctrine  in  discussion  comes 
in:  If  you  have  a  combination  to  bring  about  by  lawful 
means  the  injury  of  a  third  person  in  his  lawful  rights — 
not  amounting  to  crime — is  that  an  unlawful  conspiracy? 
Yes — for  it  is  a  "malicious  enterprise."  So  is  our  law,  and 
the  common  law  of  England,  yes.  And  you  can  easily  see 
the  common-sense  of  it.  The  danger  to  any  individual  is 
so  tremendous  if  he  is  to  be  conspired  against  by  thousands, 
hundreds  of  thousands,  not  by  one  neighbor,  but  by  all  the 
people  of  the  town,  that  it  early  got  established  as  a  principle 
of  the  common  law,  and  of  these  early  English  statutes, 
that,  although  one  man  alone  might  do  an  act  which,  other- 
wise lawful,  was  to  the  injury  of  a  third  person,  and  be 
neither  restrained  nor  punished  for  it,  he  could  not  combine 
with  others  for  that  purpose  by  the  very  same  acts.  For 
instance,  I  don't  like  the  butcher  with  whom  I  have  been 
doing  business;  I  take  away  my  trade.  That,  of  course,  I 
have  a  perfect  right  to  do.  But  going  a  step  farther,  I  tell 
my  friends  I  don't  like  Smith  and  don't  want  to  trade  with 
him — probably  I  have  a  right  to  do  that;  but  when  I  get 
every  citizen  of  that  town  together  at  a  meeting  and  say: 
"Let  us  all  agree  to  ruin  Smith,  we  will  none  of  us  trade  with 
him" — Smith  is  bound  to  be  ruined.  The  common  law 
early  recognized  this  importance  of  the  principle  of  combina- 
tion, and  therefore  it  was  part  of  the  English  common  law 
and  is  still,  barring  one  recent  statute,  that  a  combination  to 
injure  a  person,  although  by  an  act  which  if  done  by  one 


58  POPULAR  LAW-MAKING 

individual  would  be  lawful,  is  nevertheless  an  unlawful  com- 
bination; that  is,  a  conspiracy  under  the  law;  for  all  "con- 
spiracies" are  unlawful,  under  the  law;  the  meaning  of  the 
word  conspiracy  in  the  law  is,  not  an  innocent  combination, 
but  a  guilty  one,  and  anything  which  is  a  conspiracy  at  law 
can  be  punished  criminally,  or  will  give  rise  to  civil  suits 
for  damages  by  the  parties  injured,  or  usually  entitle  one  to 
the  protection  of  an  injunction.  A  conspiracy,  therefore,  is 
not  only  a  guilty  combination,  of  two  or  more  persons,  for 
an  unlawful  end  by  any  means,  or  for  a  lawful  end  by  un- 
lawful means,  but  also  one  for  an  immoral  end,  a  malicious 
end,  as,  let  us  say,  the  ruin  of  a  third  person,  or  the  injury 
of  the  public.  All  the  dispute  about  the  law  of  conspiracy 
.and  the  statutes  and  what  laborers  can  do  and  what  em- 
ployers can  do  to-day  really  hinges  about  that  last  clause. 
The  labor  leaders,  the  radicals,  want  to  say  that  nothing 
shall  be  a  conspiracy  where  the  end  is  not  unlawful  and 
where  the  acts  done  are  such  as,  if  done  by  an  individual, 
would  not  be  wrong.  In  other  words,  they  want  statutes 
to  provide  that  nothing  is  a  conspiracy  where  the  acts 
done  are  in  themselves  lawful  if  done  by  one  individual. 
But  this  English  conspiracy  law  was  of  the  most  immense 
sociological  value,  in  that  it  did  recognize  the  tremendous 
power  of  combination.  It  said,  although  you  don't  have  to 
trade  with  Smith  alone,  yet  a  combination  of  a  great  many 
individuals  for  the  purpose  of  ruining  Smith,  by  all  simul- 
taneously refusing  to  trade  with  him,  is  such  a  tremendous 
injury  to  Smith  that  the  law  will  take  cognizance  of  it  and 
hold  that  kind  of  a  combination  to  be  unlawful. 

This  definition  should  be  further  extended,  perhaps,  to 
remind  you  that  the  courts  hold  that  there  are  certain  kinds 
of  combinations,  contemplating  ends  which  will  necessarily 
result  in  the  use  of  unlawful  means;  the  most  familiar  exam- 
ple is  picketing.  The  courts  mostly  hold  that  although  in 
theory  a  labor  union  can  march  up  and  down  the  highway 
and  peacefully  advise  non-union  men  or  other  laborers  not 


INTENT  MAKES  THE  GUILT  59 

to  take  their  jobs,  in  practice  such  action  usually,  if  not  nec- 
essarily, goes  to  the  point  of  intimidation;  and  intimidation 
is  nearly  always  made  unlawful  by  statute.  Now  I  should 
only  add  that  it  is  very  important  to  remember — and  even 
the  courts  do  not  always  remember  it — that  the  thing  being 
punished  as  a  conspiracy  is  not  the  end,  but  the  combin- 
ing; the  conspiracy  itself  is  the  criminal  act.  Suppose  in 
Pennsylvania  one  thousand  men  meet  and  say:  "John  Smith 
has  taken  a  job  and  is  a  scab,  and  we  will  go  around  and 
maul  him  to-night,"  and  they  do,  or  they  don't;  if  they  are 
tried,  the  fact  whether  they  did  maul  him  or  not  has  nothing 
to  do  with  the  matter  of  the  conspiracy.  They  might,  of 
course,  be  tried  for  assault  and  battery,  or  for  an  attempt  to 
commit  murder;  but  if  they  are  being  tried  for  the  conspiracy 
the  criminal  act  is  the  combining  and  meeting,  not  what 
they  do  afterward.  Therefore  it  is  of  no  importance  what- 
ever what  the  result  of  the  matter  is.  The  thing  that  is 
criminal  is  the  combining;  and  this  leads  to  a  very  curious 
consequence:  All  conspiracies  are  criminal;  but  the  object 
aimed  at  may  be  very  slightly  so.  So  that  it  is  perfectly 
possible  to  have  a  conspiracy  which  shall  result  to  its 
members  in  five  or  ten  years  in  the  state-prison,  whereas 
the  object  itself,  the  act  aimed  at,  may  have  been  compara- 
tively slight,  a  mere  misdemeanor.  Take  the  case  of  mere 
intimidation  without  assault  or  battery;  one  man  goes  to 
another  and  says:  "If  you  take  that  work  I  shall  smash 
your  head,"  that  is  intimidation.  Thirty  of  our  States  have 
made  that  unlawful,  but  it  is  only  a  misdemeanor.  But  if 
one  thousand  men  get  together  and  say:  "We  will  go  around 
to  tell  him  we  will  smash  his  head,"  that  is  conspiracy; 
and  conspiracy  may  subject  them  to  penalty  of  years  in 
prison.  It  has  been  found  in  the  experience  of  the  English 
people  to  be  such  a  dangerous  power,  this  power  of  com- 
bination, that  to  use  it  for  an  unlawful  or  wrongful  end  may 
be  more  of  an  offence  than  the  end  itself. 

A  combination  to  injure  a  man's  trade  is,  therefore,  an 


60  POPULAR  LAW-MAKING 

unlawful  conspiracy;  well  shown  in  a  recent  Ohio  case 
where  a  combination  of  several  persons  to  draw  their  money 
out  of  a  bank  simultaneously  for  the  purpose  of  making  it 
fail,  was  held  criminal.  It  gives  a  claim  for  damages  in  a 
civil  suit  and  may  be  enjoined  against.  But  is  it  necessarily 
criminal  ?  It  is  possible  that  the  offence  to  the  public  is  so 
slight  that  the  criminal  courts  would  hardly  take  cognizance 
of  it  in  minor  cases  where  there  is  not  some  statute  expressly 
providing  for  a  criminal  remedy.  The  Sherman  Act,  our 
Anti-trust  Act,  does  so  where  even  two  persons  conspire 
together  to  restrain  interstate  commerce.  It  is  a  crime  at 
common  law,  however  slight,  for  even  two  to  combine  to 
injure  any  person's  trade.  But,  independent  of  statutes, 
suppose  only  two  persons  agree  not  to  buy  of  a  certain  butcher 
in  Cambridge:  in  theory,  he  might  have  a  civil  remedy; 
but  it  may  be  doubted  that  it  would  amount  to  a  criminal 
offence.  Lex  non  curat  de  minimis.  So,  it  is  an  offence 
under  most  State  anti-trust  laws,  as  it  was  at  the  common 
law,  to  fix  the  price  of  an  article — that  is  restraint  of  trade — 
or  to  limit  the  output.  Two  grocers  going  to  the  city  in  the 
morning  train  agree  that  they  will  charge  seven  dollars  a 
barrel  for  flour  during  the  ensuing  week;  two  icemen,  to 
harvest  only  a  thousand  tons  of  ice.  The  contract  between 
them  could  not  be  enforced;  it  is  undoubtedly  unlawful; 
but  it  would  hardly  be  a  criminal  offence  at  the  common  law. 
There  is,  at  least  at  the  common  law,  some  middle  ground 
between  those  contracts  which  are  merely  unenforceable, 
and  those  which  subject  the  co-makers  to  a  criminal  liability; 
although  under  the  cast-iron  wording  of  a  statute  it  may  be 
that  no  such  distinction  can  be  made. 

Independent  of  combination,  there  is  probably  no  legal 
wrong  in  merely  wishing  ill  to  a  man,  withdrawing  one's 
custom  from  him,  competing  with  him,  or  even,  possibly,  in 
injuring  his  trade.  There  is  an  ancient  case  where  the  cap- 
tain of  an  English  ship  engaged  in  a  certain  trade,  to  wit,  the 
slave  trade,  arrived  off  a  beach  on  the  coast  of  Africa  and 


COMBINATIONS  TO   INJURE  TRADE  61 

was  collecting  his  living  cargo,  when  a  second  ship,  arriving 
too  late  to  get  a  load  itself,  fired  a  cannon  over  the  heads  of 
the  negroes,  and  they,  with  the  chief  who  was  selling  them, 
fled  in  terror  to  the  forest.  The  captain  of  the  first  ship 
went  back  to  London  and  brought  suit  against  the  captain 
of  the  second  ship  for  injuring  his  trade  and  was  allowed  to 
recover  damages;  but  it  may  be  doubted  if  that  is  good  law; 
although  in  1909  a  Minnesota  court  decided  that  a  barber 
could  sue  an  enemy  if  he  maintained  an  opposition  barber- 
shop solely  for  the  purpose  of  injuring  his  business;  and  a 
few  years  ago  in  Louisiana  a  street  railway  foreman  was 
held  liable  in  damages  for  instructing  his  men  not  to  fre- 
quent the  plaintiff's  store.1  I  say  to  you:  "Do  not  trade 
with  Smith,  he  is  not  a  good  person  to  deal  with,"  or, 
"Do  not  take  employment  with  him,  he  will  treat  you 
cruelly";  and  in  either  case,  unless  I  can  be  convicted  of 
slander,  he  has  no  remedy  against  me  if  I  am  acting  alone. 

Now,  this  great  law  of  conspiracy  applies  equally  and 
always  to  combinations  of  capital  or  of  employers,  to  trusts, 
contracts  in  restraint  of  trade  and  blacklists,  as  well  as  to 
unlawful  labor  combinations,  unlawful  union  rules,  and 
boycotts.  The  statutes  directed  against  both  originated 
about  the  same  time  and  have  run  historically  on  all-fours 
together.  The  old  offences  of  forestalling  and  regrating 
may  have  been  lost  sight  of,  and  possibly  the  statutes  against 
them  fallen  into  disuse,  although  they  were  expressly  made 
perpetual  by  the  13th  Elizabeth  in  1570  and  not  repealed  un- 
til the  12th  George  III  in  1772;  but  the  principle  invalidating 
restraint  of  trade  and  contracts  in  restraint  of  trade  remained 
as  alive  as  that  prohibiting  unlawful  combinations  of  labor. 
The  latter,  indeed,  has  largely  disappeared.  Both  strikes  and 
trades-unions,  once  thought  unlawful  in  England,  are  made 
lawful  now  by  statute,  but  a  contract  in  restraint  of  trade 
or  a  monopolistic  combination  of  capital  is  as  unlawful  as 

» Tarleton  v.  McGawley,  Peak,  N.  P.  C.  270 ;    Tuttle  v.  Buck,  119  N.  W. 
846;  Graham  v.  St.  Charles  St.  Ry.  Co.,  47  La.  Ann.  214. 


62  POPULAR  LAW-MAKING 

it  ever  was  both  in  England  and  in  this  country;  and  the 
common  law  is  only  re-enforced  by  our  State  statutes  and 
applied  to  matters  of  interstate  commerce  as  well,  by  the 
Sherman  Act.  Closely  connected  with  both  is  the  principle 
of  reasonable  rates  in  the  exercise  of  franchises;  excessive 
toll  contrary  to  common  custom,  as  we  found  forbidden  in 
1275.  The  first  statute  against  forestalling  merely  inflicts 
a  punishment  on  forestallers  and  dates  ten  years  later,  1285, 
though  the  time  of  this,  the  Statute  concerning  Bakers,  is  put 
by  some  still  earlier,  with  the  Assize  of  Bread  and  Beer,  in 
1266.  It  provides  the  standard  weight  and  price  of  bread, 
ale,  and  wine,  the  toll  of  a  mill.  It  anticipates  our  pure-food 
laws  and  punishes  butchers  for  selling  unwholesome  flesh  or 
adulterating  oatmeal,  and  says  "that  no  Forestaller  be  suf- 
fered to  dwell  in  any  Town,  which  is  an  open  Oppressor  of 
Poor  People  .  .  .  which  for  Greediness  of  his  private  Gain 
doth  prevent  others  in  buying  Grain,  Fish,  Herring,  or  any 
other  Thing  to  be  sold  coming  by  land  or  Water,  oppressing 
the  Poor,  and  deceiving  the  Rich,  which  carrieth  away  such 
Things,  intending  to  sell  them  more  dear,  .  .  .  and  an 
whole  Town  or  a  Country  is  deceived  by  such  Craft  and 
Subtilty,"  and  the  punishment  is  put  at  a  fine  at  the  first 
offence  with  the  loss  of  the  thing  bought,  the  pillory  for  the 
second  offence,  fine  and  imprisonment  for  the  third,  and  the 
fourth  time  banishment  from  the  town. 

The  first  definition  of  forestalling  is  here  given.  Our 
modern  equivalent  is  the  buying  of  futures  or  dealing  in 
stocks  without  intent  to  deliver,  both  of  which  have  been 
forbidden  or  made  criminal  in  many  of  our  States.  And 
forestalling,  regrating,  and  engrossing  were  things  early  rec- 
ognized as  criminal  in  England,  and  these  statutes  embody 
much  of  what  is  sound  in  the  present  legislation  against 
trusts. 

Forestalling  was  very  apt  to  be  done  in  a  staple,  that  is, 
in  the  town  which  was  specially  devoted  to  that  article  of 
trade;  so  that  the  laws  of  forestalling  got  very  much  mixed 


"THE   IOWA   IDEA"  63 

up  with  the  laws  of  the  staple;  but  forestalling  would  equally 
mean  going  into  any  market  and  buying  up  all  the  production. 
If  the  article  was  produced  abroad,  the  forestaller  would  try 
to  buy  up  the  entire  importation. 

(1352)  We  now  find  another  statute;  it  applies  to  wines 
and  liquors  "and  all  other  wares  that  come  to  the  good  towns 
of  England,"  and  the  penalty  imposed  by  that  law  was  that 
the  forestaller  must  forfeit  the  surplus  over  cost  to  the  crown 
and  be  imprisoned  two  years.  We  are  still  enforcing  reme- 
dies of  that  kind  in  our  anti-trust  laws,  only  instead  of  having 
him  forfeit  the  surplus  to  the  crown  we  usually  have  him  pay 
damages,  sometimes  treble  damages  to  the  persons  injured. 
In  the  Beef  Trust  case,  the  parties  were  duly  convicted,  and 
instead  of  being  imprisoned,  they  were  fined  $25,000.  In 
other  words,  we  still  have  not  the  courage  to  go  to  the  length 
that  our  ancestors  did  in  enforcing  the  penalties  of  these 
unlawful  combinations.  Of  course  it  is  a  much  more  diffi- 
cult thing  to  have  forestalling  and  engrossing  laws  against 
foreign  importations  than  against  home  productions;  and  so 
to-day  we  have  not  tried,  except  by  a  tariff,  forestalling  laws 
against  foreign  importations,  but  we  have  attempted  to  apply 
them  very  much  as  to  home  productions.  In  England,  how- 
ever, the  statute  at  that  time  said  that  a  person  who  bought 
up  all  the  foreign  product  must  forfeit  all  the  profits  to  the 
state.  Now  this  is  nothing  but  the  "Iowa  idea"  of  two 
years  ago.  It  was  suggested  very  urgently  by  Governor 
Cummins  that  there  should  be  a  law  providing  that  where 
a  trust  got  complete  control  of  a  certain  industry  in  this 
country  its  surplus  profit  should  be  forfeited  either  indirectly 
by  the  taking  off  of  the  tariff,  or  by  way  of  a  franchise  tax, 
that  is,  of  a  United  States  tax  upon  its  franchises,  which 
could  be  increased  in  such  a  way  as  to  tax  it  out  of  existence 
if  it  persisted.  The  latter  remedy  is  at  the  root  of  President 
Taft's  new  corporation  tax,  but  Congress  has  not  yet  applied 
the  former,  although  it  was  very  seriously  advocated  that 
there  should  be  statutes  which  should  indirectly  forfeit  the 


64  POPULAR  LAW-MAKING 

profits  of  the  trust  that  had  secured  a  monopoly;  that  is  an 
engrossing  trust — covin  or  alliance,  as  our  ancestors  would 
have  called  it — "a  gentleman's  agreement" — and  that  it 
should  be  done  by  a  reduction  of  the  tariff  on  the  articles  in 
which  that  trust  dealt;  this  reduction  to  be  ordered  by  the 
president.  When  he  determined  that  a  trust  had  completely 
engrossed  an  industry,  he  might  say  so  by  proclamation;  and 
then  the  act  of  Congress  should  go  into  effect  and  the  duties 
upon  that  product  be  abolished,  all  the  protection  of  the 
trust  taken  away.  There  is  a  trouble  with  such  legislation, 
in  that  it  may  be  said  to  allow  the  president  to  make  the  law; 
and  under  our  Constitution  the  president  cannot  make  laws. 
The  legislative  branch  and  the  executive  branch  of  the  gov- 
ernment must  be  kept  distinct;  and  it  probably  would  be 
argued  by  constitutional  lawyers,  and  in  this  instance  by 
either  party  that  was  not  in  favor  of  such  legislation,  that 
to  reduce  the  duties  of  such  a  class  of  goods  was  a  legislative 
act,  and  therefore  any  such  law  would  be  unconstitutional 
because  the  president  cannot  legislate.  But  the  point  I  wish 
to  make  now  in  both  these  cases  is  the  exact  correspondence 
of  the  problem;  what  are  remedies  to-day  were  remedies 
five  hundred  years  ago.  So  far  we  have  found  nothing  new, 
either  in  remedy  or  offence. 

(1349)  Now  there  is  a  third  great  line  of  legislation  that 
we  must  consider  in  connection  with  these  other  two,  and 
that  is  the  Statutes  of  Labor.  It  was  the  custom  in  early 
times  to  attempt  to  regulate  prices;  both  of  wages  and  com- 
modities. The  first  Statute  of  Laborers  dates  from  1349. 
Its  history  was  economic.  They  had  had  a  great  plague  in 
England  known  as  the  Black  Death;  and  it  had  carried  off 
a  vast  number  of  people,  especially  the  laboring  people. 
There  was  naturally  great  demand  for  workers.  Laborers 
were  very  scarce.  It  is  estimated  that  one-third  of  the  entire 
population  had  died;  and  there  has  never  been  a  time  when 
wages  were  so  high  relatively,  that  is,  when  wages  would  buy 
so  much  for  the  workingman,  as  about  the  middle  of  the 


THE  STATUTE  OF  LABOR  65 

fourteenth  century.  But  the  employers  were  no  fonder  of 
high  wages  than  they  are  to-day.  All  England  was  used  to 
sumptuary  laws,  laws  regulating  the  price  of  commodities, 
and  villeins  still  existed.  They  were  only  just  beginning  to 
consider  agricultural  laborers  as  freemen;  they  were  used 
to  the  notion  of  exerting  a  control  over  laboring  men,  who 
were  still  often  appendant  to  the  land  on  which  they  worked, 
for  it  was  unlawful  for  an  agricultural  laborer  to  change  his 
abode;  and  in  many  other  ways  they  were  under  strict  laws. 
So  that  it  didn't  seem  much  of  a  step  to  say  also,  we  will 
regulate  the  rate  of  wages — particularly  as  the  payment  of 
wages  in  money  was  rather  a  new  thing.  Probably  two  or 
three  centuries  before  most  wages  were  paid  in  articles  of 
food  or  in  the  use  of  the  land.  So  they  got  this  first  Statute 
of  Laborers  through;  it  required  all  persons  able  in  body 
under  sixty  to  do  labor  to  such  persons  as  require  labor  or 
else  be  committed  to  gaol.  That,  of  course,  is  compulsory 
labor;  the  law  would  therefore  be  unconstitutional  with  us 
to-day  except  in  so  far  as  it  applied,  under  a  criminal  statute, 
in  regard  to  tramps  or  vagrants.  In  some  States  we  commit 
tramps  and  vagrants  to  gaol  if  they  won't  do  a  certain  amount 
of  work  for  their  lodging,  under  the  theory  that  they  have 
committed  a  criminal  act  in  being  vagrants.  Otherwise  this 
principle,  a  law  requiring  all  persons  to  work,  is  now  obsolete. 
Then  it  went  on  to  say,  no  workman  or  servant  can  depart 
from  service  before  the  time  agreed  upon;  lawful  enough, 
to-day,  although  laborers  do  not  like  to  make  a  definite 
contract.  The  South,  however,  has  adopted  this  principle 
as  to  agricultural  labor,  just  as  in  the  England  of  the  four- 
teenth century.  Southern  States  have  an  elaborate  system 
of  legislation  for  the  purpose  of  enforcing  labor  upon  idle 
negroes,  which,  when  it  creates  a  system  of  "peonage,"  is 
forbidden  by  the  Federal  laws  and  Constitution.  They  are 
compelled,  as  in  the  old  English  statute,  to  serve  under  con- 
tract or  for  a  period  of  time,  and  if  they  break  it,  are  made 
liable  by  this  statute  to  some  fine  or  penalty  imposed  by  the 


66  POPULAR  LAW-MAKING 

nearest  justice  of  the  peace;  and  when  they  cannot  pay  this, 
they  may  be  imprisoned.  Finally,  this  Statute  of  Laborers 
first  states  the  principle  that  the  old  "wage  and  no  more" 
shall  be  given,  thus  establishing  the  notion  that  there  was  a 
legal  wage,  which  lasted  in  England  for  centuries  and  gave 
rise  to  the  later  law  under  which  strikes  were  held  unlawful. 
Here,  they  meant  such  wages  as  prevailed  before  the  Black 
Death. 

(1350)  The  next  year  the  statute  is  made  more  elaborate, 
and  specifies,  for  common  laborers,  one  penny  a  day;  for 
mowers,  carpenters,  masons,  tilers,  and  thatchers,  three 
pence,  and  so  on.  It  is  curious  that  the  relative  scale  is 
much  the  same  as  to-day:  masons  a  little  more  than  tilers, 
tilers  a  little  more  than  carpenters;  though  unskilled  labor 
was  paid  less  in  proportion.  The  same  statute  attempts  to 
protect  the  laborer  by  providing  that  victuals  shall  be  sold 
only  at  reasonable  prices,  which  were  apparently  fixed  by  the 
mayor. 

Here,  therefore,  we  have  the  much-discussed  Standard 
Wage  fixed  by  law,  but  in  the  interest  of  the  employer;  not 
a  "living  wage"  fixed  in  the  interest  of  the  employee,  as 
modern  thought  requires.  The  same  statute  makes  it  un- 
lawful to  give  to  able-bodied  beggars,  which  is  of  a  piece 
with  the  compulsory  labor  of  the  able-bodied.  Now  this  first 
Statute  of  Laborers,  which  led  to  centuries  of  English  law 
unjust  to  the  laborers,  it  is  interesting  to  note,  was  possibly 
never  a  valid  law,  for  it  was  never  agreed  to  by  the  House  of 
Commons.  However  that  may  be,  the  confirming  statute  of 
1364  was  duly  enacted  by  Parliament,  and  this  was  not  in 
terms  repealed  until  the  year  1869,  although  labor  leaders 
claim  it  to  have  been  repealed  by  general  words  in  the  5th 
Elizabeth. 

Thorold  Rogers  tells  us  that  those,  after  all,  were  the 
happy  days  of  the  laborer — when  masons  got  four  pence  a 
day,  and  the  Black  Prince,  the  head  of  the  army,  only  got 
twenty  shillings — sixty  times  as  much.  This  is  a  fair  modern 


EARLY  LAW  OF  TRADES-UNIONS  67 

proportion,  however,  for  military  and  other  state  service; 
though  we  pay  the  president  a  salary  of  nearly  double  that 
proportion  to  the  yearly  pay  of  a  carpenter.  But  then,  these 
English  statutes  applied  mainly  to  agricultural  labor;  and 
domestic  labor  was  paid  considerably  less. 

This  Statute  of  Laborers  was  again  re-enacted  in  1360, 
with  a  clause  allowing  work  in  gross,  and  forbidding  "alli- 
ances and  covins  between  masons,  carpenters,  and  guilds." 
Work  "in  gross"  means  work  by  contract,  piece-work, 
thus  made  expressly  lawful  by  statute  in  England  in  1360, 
but  still  objected  to  by  many  of  our  labor  unions  to-day. 
The  provision  against  alliances  and  covins  was  extended 
to  cover  trades-unions,  their  rules  and  by-laws,  as  well  as 
strikes,  which  were  also  considered  combinations  in  restraint 
of  trade.  Now  this  was  never  law  in  this  country. 

There  was  a  very  early  case  in  Pennsylvania,  while  it  was 
still  a  colony,  and  there  were  others  in  the  States  soon  after, 
which  held  that  the  Statutes  of  Laborers  were  never  law  in 
America.  Our  statutes  early  authorized  trades-unions,  but 
without  this  there  is,  I  think,  no  American  case  where  either 
a  trades-union  or  a  simple  strike  was  held  to  be  an  unlawful 
combination.  It  was  these  early  statutes  which  gave  rise  to 
the  law  that  existed  until  the  nineteenth  century  in  England, 
that  both  strikes  and  unions  were  unlawful;  a  strike  because 
it  was  usually  a  combination  to  raise  the  rate  of  wages,  which 
was  in  theory  fixed  by  law.  Therefore,  a  strike  was  a  com- 
bination with  an  unlawful  aim,  consequently  a  conspiracy. 
The  logic  is  simple;  and  in  the  same  way  a  trades-union  was 
certainly  an  alliance  between  skilled  workmen,  and  as  such 
forbidden  under  the  Statute  of  Laborers,  besides  being  a 
combination  in  restraint  of  trade. 

Now  the  guild,  in  so  far  as  it  was  a  combination  of  a  trade 
in  a  town,  was  a  perfectly  lawful  thing;  in  so  far  as  it  bore 
upon  the  right  of  a  man  to  be  a  freeman,  it  was  a  perfectly 
lawful  thing;  it  was  only  from  the  other  end,  from  this 
statute  I  read  as  to  combinations,  that  two  or  three  centuries 


68  POPULAR  LAW-MAKING 

later  they  got  the  notion  that  a  trades-union  was  an  unlawful 
thing;  so  you  may  say  that  a  trades-union  in  England  has  a 
lawful  root  and  an  unlawful  root,  and  it  is  rather  important 
to  see  from  which  each  class  springs.  The  first  case  in  which 
the  modern  strike  was  considered  was  a  case  known  as  the 
Journeymen  Tailors'  case,  which  happened  more  than  two 
hundred  years  ago;  and  in  that  case  it  was  definitely  held  to 
be  an  unlawful  combination,  while  the  first  case  on  the  mod- 
ern boycott,  where  an  injunction  was  awarded,  is  as  late  as 
1868,  this  being  the  origin  of  that  process  which  has  evoked 
so  much  criticism  here,  the  use  of  the  injunction  in  labor 
disputes.  The  unskilled  laborers  in  England  have  never 
combined;  the  only  people  who  combined  were  the  guilds, 
the  skilled  men,  and  in  so  far  as  they  combined  they  did 
it  rather  as  capitalists,  employees,  or  as  freemen,  to  govern 
the  town;  this  was  a  lawful  object;  and  the  guilds  rapidly 
grew  into  little  aristocracies.  They  very  soon  ceased  to  be 
journeyman  laborers,  and  became  combinations  of  employers. 
Thus,  the  guild  movement  didn't  amount  to  much  in  bring- 
ing about  the  modern  trades-union  or  combinations  of  labor- 
ing men;  it  began  before  it  occurred  to  these  latter  that  they 
also  could  combine;  just  as,  even  now,  it  is  more  difficult 
among  women  to  get  them  to  join  trades-unions,  or  for  work- 
ing women  to  combine;  they  have  not  apparently  got  into 
that  stage  of  evolution ;  and  so  with  the  negroes  in  the  South. 
But  about  the  end  of  the  eighteenth  century  you  begin  to  find 
the  first  strikes  and  combinations  of  workingmen;  and  then 
what  the  courts  promptly  applied  to  them  was  not  the  old 
line  of  statutes,  the  historical  common-law  growth,  deriving 
from  a  guild  which  in  its  origin  was  a  lawful  body  and  so 
making  the  union  free  and  lawful,  but  naturally — for  the 
magistrates  were  capitalists  and  land-owners,  and  all  the 
courts  were  in  sympathy  with  that  class — they  went  back 
to  the  long  series  of  Statutes  of  Laborers,  and  said  "this  is 
a  combination  of  workingmen  to  break  the  law  by  getting 
more  than  lawful  wages,"  and  consequently  found  both 


LABOR  CONDITIONS  IN   EARLY  TIMES  69 

combinations  unlawful,  trades-unions  and  strikes,  as  well  as 
when  they  were  combinations  to  injure  somebody,  what  we 
should  now  call  a  boycott. 

The  great  Statute  of  Laborers  which  was  for  centuries 
supposed  to  settle  the  law  of  England  is  that  of  Elizabeth  in 
1562.  Meantime,  agricultural  labor  as  well  as  industrial  was 
getting  to  be  free.  A  statute  of  1377,  which  requires  villeins 
refusing  to  labor  to  be  committed  to  prison  on  complaint  of 
the  landlord,  without  bail,  itself  recognizes  that  villeins  flee- 
ing to  a  town  are  made  free  after  a  year  and  day's  habitation 
therein.  In  1383  came  Wat  Tyler's  rising;  the  villeins  de- 
manded a  commutation  of  agricultural  labor  to  a  money 
rent  (four  pence)  and  full  freedom  of  trade  and  labor  in  all 
the  market  towns;  and  about  this  time  was  great  growth  of 
small  freeholders. 

(1388)  The  Statute  of  Richard  II  restricts  laborers  to  their 
hundred  and  makes  it  compulsory  for  them  to  follow  the 
same  trade  as  their  father  after  the  age  of  twelve.  The  wages 
of  both  industrial  and  agricultural  laborers  are  again  fixed — 
shepherds,  ten  shillings  a  year;  ploughmen,  seven;  women 
laborers,  six  shillings,  and  so  on.  Servants  are  permitted  to 
carry  bows  and  arrows,  but  not  swords,  and  they  may  not 
play  tennis  or  foot-ball.  And  here  is  the  historical  origin 
of  the  important  custom  of  exacting  recommendations:  ser- 
vants leaving  employment  are  required  to  carry  a  testimonial, 
and  none  are  to  receive  servants  without  such  letter — the 
original  of  the  blacklist.  Here,  also,  we  find  the  beginning 
of  poor-law  legislation,  those  unable  to  work  are  to  be  sup- 
ported in  the  town  where  born.  Villeinage,  which  began  at 
the  Norman  Conquest,  according  to  Fitz-Herbert,  "because 
the  Conqueror  gave  lordships  with  all  the  inhabitants  to  do 
with  them  at  their  pleasure  to  his  principal  followers,  and 
they,  needing  servants,  pardoned  the  inhabitants  of  their 
lives,  and  caused  them  to  do  all  manner  of  service" — was 
now  abolished  by  compensation  in  a  money  wage  payment. 
The  institution  of  villeinage  is  last  mentioned  in  a  commission 


70  POPULAR  LAW-MAKING 

of  Queen  Elizabeth,  1574,  directing  Lord  Burleigh  and  others 
in  certain  counties  to  compound  with  all  such  bondmen  or 
bondwomen  for  their  manumission  and  freedom. 

(1389)  The  next  year  the  practice  of  fixing  wages  at  a 
permanent  sum  is  abandoned  and  they  are  to  be  fixed  semi- 
annually  at  Easter  and  Michaelmas  by  a  justice  of  the  peace. 
In  1402  we  find  the  remarkable  provision  that  laborers  are 
not  to  work  on  feast  days  nor  for  more  than  half  a  day  before 
a  holiday.  Such  legislation  would  hardly  be  necessary  in 
modern  England,  where,  in  many  trades,  no  one  works  for 
a  whole  day  after  the  holiday  as  well.  In  1425  is  another 
statute  forbidding  masons  to  confederate  themselves  in  chap- 
ters; and  in  1427  the  attempt  to  fix  wages  by  law  is  again 
abandoned  and  they  are  to  be  fixed  by  the  justices  as  in 
1389,  "because  Masters  could  not  get  Servants  without 
giving  higher  Wages  than  allowed  by  the  Statute." 

(1436)  Now,  perhaps,  we  find  the  first  use  of  the  expression 
"restraint  of  trade,"  that  most  important  phrase,  in  a  statute 
forbidding  by-laws  of  guilds  or  corporate  companies  "in 
restraint  of  trade,"  also  forbidding  unlawful  ordinances  by 
them  as  to  the  price  of  their  wares  "for  their  own  profit  and 
to  the  common  hurt  of  the  people"  and  such  by-laws  are  made 
penal  and  invalid  except  when  approved  by  the  chancellor; 
and  this  statute  of  Henry  VI  is  re-enacted  again  in  1503  under 
Henry  VII,  where  by-laws  of  guilds,  etc.,  restraining  suits  at 
law  are  made  unlawful,  and  so  "ordinances  against  the  com- 
mon weal  of  the  people!1  The  meaning  and  importance  of 
such  legislation  as  this  has  been,  I  hope,  made  clear  above. 
Note  the  words  "to  the  common  hurt  of  the  people"  and 
"against  the  common  weal  of  the  people"  From  this  century, 
at  least,  therefore,  dates  that  doctrine  of  the  common  law 
which  makes  unlawful  any  contract  or  combination  in  re- 
straint of  trade,  and  it  was  left  for  the  succeeding  century  to 
develop  the  last  great  principle,  that  against  monopoly,  caused 
either  by  unlawful  combination  of  individuals  or  grant  by 
the  crown  itself. 


THE  RIGHT  TO  LABOR  71 

The  right  to  labor  or  to  trade  was  thus  fully  established  in 
England,  and  from  the  very  earliest  times  we  find  statutes 
that  merchants  may  freely  buy  and  sell.  The  Statute  of 
York,  to  this  effect  (1335),  is  re-enacted  sixteen  years  later, 
and  again  under  Richard  II  in  1391 ;  and  their  right  to  carry 
away  one-half  the  value  of  their  imports  in  money,  spend- 
ing the  other  half  in  English  commodities,  in  1401. 

This  general  right  of  trade  may  be  defined  as  the  right  of 
any  man  to  work  at  what  trade  he  chose,  and  to  buy  or  sell 
what  and  where  he  will,  in  the  cheapest  market.  This  right 
was  indeed  fundamental  and  needed  no  express  statute. 
But  all  these  laws  concerning  by-laws  or  combinations  to 
prevent  people  from  exercising  their  trade,  or  showing  what 
were  the  liberties  of  trade  in  London  and  other  towns  (of 
which  there  are  many)  are  exemplifications  of  it.  That  this 
law  is  far  older  than  the  statutes  is  well  shown  by  an  actual 
law  report  of  a  case  decided  in  1221  and  first  published  by 
the  Selden  Society  in  1877: 

"The  Abbot  of  Lilleshall  complains  that  the  bailiffs  of 
Shrewsbury  do  him  many  injuries  against  his  liberty,  and 
that  they  have  caused  proclamation  to  be  made  in  the  town 
that  none  be  so  bold  as  to  sell  any  merchandise  to  the  Abbot 
or  his  men  upon  pain  of  forfeiting  ten  shillings,  and  that 
Richard  Peche,  the  bedell  of  the  said  town,  made  this  procla- 
mation by  their  orders.  And  the  bailiffs  defend  all  of  it, 
and  Richard  likewise  defends  all  of  it  and  that  he  never 
heard  any  such  proclamation  made  by  anyone.  It  is  con- 
sidered that  he  do  defend  himself  twelve-handed  (with  eleven 
compurgators),  and  do  come  on  Saturday  with  his  law." 

This  is  a  remarkable  report,  for  in  twelve  lines  (ten  lines 
of  the  law  Latin)  we  have  here  set  forth  all  the  important 
principles  of  the  law  of  boycott.  The  abbot  complains  that 
the  Shrewsbury  people  do  him  many  injuries  "against  his 
liberty,"  i.  e.,  the  abbot  claims  a  constitutional  right  to  freely 
conduct  his  own  business;  then  we  have  the  recognition  of 
the  threat  of  a  boycott  as  a  particularly  illegal  act:  "They 


72  POPULAR  LAW-MAKING 

have  caused  proclamation  to  be  made  that  none  sell  merchan- 
dise to  the  abbot."  This  is  nothing  but  our  modern  "unfair 
list."  The  defendants  admit  the  illegality  of  their  con- 
spiracy, because  they  deny  it  as  a  fact;  and  the  bedell  like- 
wise denies  that  he  ever  made  such  proclamation  or  threat, 
whereupon  (the  plaintiff  being  a  man  of  the  church)  they  are 
set  to  trial  by  wager  of  law  instead  of  by  actual  battle, 
neither  party  nor  the  court  making  any  question  of  the  ille- 
gality both  of  the  conspiracy  and  of  the  act  complained  of. 
There  is  no  question  then  that  all  contracts  in  unreasonable 
restraint  of  trade  were  always  unlawful  in  England  and  are 
so  therefore  by  our  common  law.  There  was  probably  no 
real  necessity  for  any  of  our  anti-trust  acts,  except  to  impose 
penalties,  or,  as  to  the  Federal  or  Sherman  Act  so-called,  to 
extend  the  principles  of  the  common  law  to  interstate  com- 
merce, which  is  under  the  exclusive  jurisdiction  of  the  Fed- 
eral government.  The  common  law,  however,  made  the  ex- 
ception of  reasonable  restraint  of  trade,  which  the  Sherman 
Act  does  not;  that  is  to  say,  a  contract  between  two  persons, 
one  of  whom  sells  his  business  and  good- will  to  the  other  and 
agrees  not  to  embark  in  the  same  trade  for  a  certain  number 
of  years  or  in  a  certain  prescribed  locality,  was  a  reasonable 
restriction  at  the  common  law.  So,  if  two  merchants  going 
down  town  to  their  business  agree  in  the  street  car  that  they 
will  charge  a  certain  amount  for  a  barrel  of  flour  or  a  ton  of 
coal  that  week,  this  would  probably  be  regarded  as  reasona- 
ble at  the  common  law;  but  the  common  law,  like  these  early 
statutes  of  England,  looked  primarily,  if  not  exclusively,  to 
the  welfare  of  the  consumer;  they  always  speak  of  the  com- 
mon weal  of  the  people,  or  of  combinations  to  the  general 
hurt  of  the  people,  and  general  combinations  to  fix  prices 
or  to  limit  output  are  therefore  always  unlawful;  so  a  com- 
bination that  only  one  of  them  should  exercise  a  certain 
business  at  a  certain  place — like  that  of  our  four  great  meat- 
packing firms,  who  are  said  to  have  arranged  to  have  the 
buyer  for  each  one  in  turn  appear  in  the  cattle  market,  thus 


THE  EARLIEST  BOYCOTT  73 

being  the  only  buyer  that  day — would  be  unlawful,  when  the 
restraint  of  trade  resulting  from  an  ordinary  purchase  would 
not  be. 

The  fixing  of  ordinary  prices,  not  tolls,  was  thoroughly 
tried  in  the  Middle  Ages  and  failed.  Nor  has  it  been 
attempted  since  as  to  wages,  except  in  New  Zealand  by 
arbitration,  and  in  England  and  (as  to  public  labor)  in  the 
State  of  New  York  and  a  few  other  States  where  we  have 
a  recent  statute  that  all  employment  in  public  work  (that 
is,  work  for  any  city,  county,  or  town,  or  the  State,  or  for 
any  contractor  therefor)  must  be  paid  for  "at  the  usual  rate 
of  wages  prevailing  in  the  trade";  this  principle,  taken  from 
the  last  form  of  the  English  Statute  of  Laborers,  being 
passed  in  the  interest  of  the  laborers  themselves  and  not  of 
the  employers,  as  it  was  in  early  England.  The  result  of 
this  first  piece  of  legislation  was  to  impose  some  twenty 
thousand  lawsuits  upon  the  city  of  New  York  alone;  the 
laborers  working  for  a  year  or  two  at  the  rates  paid  by 
the  city  and  then,  after  discharge,  bringing  suit  and  claim- 
ing that  they  had  not  been  paid  the  "usual  rate"  of  the 
trade;  and  as  there  were  very  heavy  penalties,  it  is  said 
to  have  cost  the  city  of  New  York  many  millions  of  dollars. 
In  the  same  way  the  union  idea  of  having  all  trades  under 
the  control  of  an  organization  was  carried  to  its  extreme 
result  in  the  Middle  Ages  also,  so  that  the  guilds  became 
all-powerful;  they  imposed  their  rules  and  regulations  to 
such  an  extent  that  it  was  almost  impossible  for  any  man  to 
get  employment  except  by  their  permission  and  under  their 
regulation,  or  without  membership.  They  naturally  devel- 
oped into  wealthy  combinations,  more  of  employers  than  of 
journeymen,  until  they  ended  as  the  richly  endowed  dinner- 
giving  corporations  that  we  see  in  the  city  of  London  to-day. 
In  France,  at  least,  they  were  considered  the  greatest  menace 
to  labor,  and  were  all  swept  away  at  the  time  of  the  French 
Revolution  amid  the  joy  of  the  masses  and  the  pealing  of 
bells.  Unfortunately,  our  labor  leaders  are  sometimes 


74  POPULAR  LAW-MAKING 

scornful  of  history  and  unmindful  of  past  example;  the 
fact  that  a  thing  has  been  tried  and  failed  or  has,  in  past 
history,  developed  in  a  certain  manner,  carries  no  conviction 
to  their  minds. 

(1444)  A  servant  in  husbandry  had  to  give  six  months' 
notice  before  leaving  and  wages  were  again  fixed;  and  in 
1452,  the  time  of  Jack  Cade's  Rebellion,  one  finds  the  first 
prototype  of  "government  by  injunction,"  that  is  to  say,  of 
the  interference  by  the  lord  chancellor  or  courts  of  equity 
with  labor  and  the  labor  contract,  particularly  in  times  of 
riot  or  disorder. 

But  the  first  trace  of  this  practice,  now  obnoxious  to 
many  under  the  phrase  quoted,  dates  back  to  1327,  when 
King  Edward  III  found  it  necessary  to  adopt  some  more 
effectual  measures  of  police  than  those  which  already  existed. 
For  this  purpose  justices  of  the  peace  were  first  instituted 
throughout  the  country  with  power  to  take  security  for  the 
peace  and  bind  over  parties  who  threatened  offence.1  Fifty 
years  later,  in  the  reign  of  Richard  II,  it  was  found  necessary 
to  provide  further  measures  for  repressing  forcible  entries  on 
lands.  The  course  of  justice  was  interrupted  and  all  these 
provisions  were  rendered  in  a  great  degree  ineffectual  by 
the  lawless  spirit  of  the  times.  The  Statute  of  1379  re- 
cites that  "our  Sovereign  Lord  the  King  hath  perceived 
.  .  .  that  divers  of  his  Liege  People  claiming  to  have  Right 
to  divers  Lands,  Tenements,  and  other  Possessions,  and  some 
espying  Women  and  Damsels  unmarried  ...  do  gather 
them  together  to  a  great  Number  of  Men  of  Arms  and  Arch- 
ers .  .  .  not  having  Consideration  to  God,  but  refusing  and 
setting  apart  all  Process  of  the  Law,  do  ride  in  great  Routs 
.  .  .  and  take  Possession  of  Lands  and  in  some  Places  do 
ravish  Women  and  Damsels,  and  bring  them  into  strange 
Countries."  Therefore  the  Statute  of  Northampton,  the  2d 
of  Edward  III,  is  recited  and  confirmed  and  the  justices 

i  See  "Injunctions  in  Conspiracy  Cases,"  Senate  Document  No.  190,  57th 
Congress,  1st  Session,  p.  117. 


THE  COMMON   LAW   VINDICATED  75 

of  the  king's  commission  ordered  to  arrest  such  persons 
incontinent  without  tarrying  for  indictment  or  other  process 
of  law.  But  that  this  summary  process  was  already  ob- 
noxious to  the  people  was  shown  by  the  fact  that  it  was 
repealed  the  very  following  year  because  the  articles  "seem- 
eth  to  the  said  Commons  very  grievous."  Only  the  Statute 
of  Northampton  is  preserved,  and  those  who  had  been  so 
taken  and  imprisoned  by  virtue  of  said  article  without  other 
indictment  "shall  be  utterly  delivered." 

(1384)  It  is  noteworthy  that  at  the  same  time  that  this 
extra-common-law  process  begins  in  the  statutes,  we  have 
other  statutes  vindicating  the  power  of  the  common-law 
courts.  For  instance,  six  years  later,  in  the  8th  of  Richard 
II  is  a  clause  complaining  that  "divers  Pleas  concerning  the 
Common  Law,  and  which  by  the  Common  Law  ought  to  be 
examined  and  discussed,  are  of  late  drawn  before  the  Con- 
stable and  Marshal  of  England,  to  the  great  Damage  and 
Disquietness  of  the  People."  Such  jurisdiction  is  forbidden 
and  the  common  law  "shall  be  executed  and  used,  and  have 
that  which  to  it  belongeth  ...  as  it  was  accustomed  to  be 
in  the  time  of  King  Edward."  Again,  four  years  later,  it  is 
ordained  "that  neither  Letters  of  the  Signet,  nor  of  the 
King's  Privy  Seal,  shall  be  from  henceforth  sent  in  Damage 
or  Prejudice  of  the  Realm,  nor  in  Disturbance  of  the  Law." 

(1388)  The  next  year  we  find  a  new  Statute  of  Laborers 
confirming  all  previous  statutes  and  forbidding  any  servant 
or  laborer  to  depart  from  service  without  letters  testimonial, 
and  if  found  wandering  without  such  letters  shall  be  put  in 
the  stocks.  Short  of  the  penalty  of  the  stocks,  a  condition 
of  things  not  very  dissimilar  is  said  to  exist  to-day  in  the  non- 
union mining  towns  of  the  West.  In  Cripple  Creek,  for 
instance,  no  one  is  allowed  without  a  card  from  his  previous 
employer  which,  among  other  things,  sets  forth  that  he  is 
not  associated  with  any  labor  union.  This  Statute  of  Rich- 
ard II  also  provides  that  artificers  and  people  of  Mystery, 
that  is  to  say,  handicraftsmen,  shall  be  compelled  to  do 


70  POPULAR  LAW-MAKING 

agricultural  labor  in  harvest  time.  (The  high  prices  of 
to-day,  some  one  has  said,  are  really  caused  not  so  much  by 
the  trusts  or  even  by  the  tariff,  as  by  voluntary  idleness;  if 
a  man  will  not  work,  neither  shall  he  eat,  but  the  lesson  has 
been  forgotten  1  In  the  more  prosperous  parts  of  the  country, 
in  Massachusetts,  for  instance,  it  is  sometimes  impossible  to 
give  away  a  standing  crop  of  grain  for  the  labor  of  cutting  it, 
nor  can  able-bodied  labor  be  secured  even  at  two  dollars  per 
day.  The  Constitution  of  Oklahoma,  which  goes  to  the 
length  of  providing  that  there  shall  be  no  property  except  in 
the  fruits  of  labor,  might  logically  have  embodied  the  princi- 
ple of  this  Statute  of  Richard  II ;  and  we  know  that  in  Kansas 
they  invite  vacation  students  to  harvest  their  crop.  So  in 
France,  practically  every  one  turns  out  for  the  vendange,  and 
in  Kent  for  the  hops;  a  merriment  is  made  of  it,  but  at  least 
the  crop  is  garnered.)  The  Statute  of  Richard  goes  on  to 
complain  of  the  outrageous  and  excessive  hire  of  labor,  and 
attempts  once  more  to  limit  the  prices,  but  already  at  more 
than  double  those  named  in  the  earlier  statute:  ploughmen 
seven  pence,  herdsmen  six  pence,  and  even  women  six  pence 
a  day,  and  persons  who  have  served  in  husbandry  until  the 
age  of  twelve  must  forever  continue  to  do  so.  They  may  not 
learn  a  trade  or  be  bound  as  apprentices.  Servants  and 
laborers  may  not  carry  arms  nor  play  at  foot-ball  or  tennis; 
they  are  encouraged,  however,  to  have  bows  and  arrows  and 
use  the  same  on  Sundays  and  holidays.  Impotent  beggars 
are  to  be  supported  by  the  town  where  they  were  born. 

(1387)  The  barons  protested  that  they  would  never  suffer 
the  kingdom  to  be  governed  by  the  Roman  law,  and  the 
judges  prohibited  it  from  being  any  longer  cited  in  the  com- 
mon-law tribunals;1  and  in  1389  we  find  another  statute 
complaining  of  the  courts  of  the  constable  and  marshal  hav- 
ing cognizance  of  matters  which  can  be  determined  by  the 
common  law,  and  forbidding  the  same;  and  the  statute  of 
the  previous  year  concerning  laborers  is  confirmed,  except 

>  Spence,  1  Eq.  Jur.,  346. 


COMPULSORY  LABOR  IN  ENGLAND       77 

that  wages  are  to  be  fixed  by  a  justice  of  the  peace,  "Foras- 
much as  a  Man  cannot  put  the  Price  of  Corn  and  other 
Victuals  in  certain."  Shoemakers  are  forbidden  to  be  tan- 
ners, and  tanners  to  be  shoemakers;  a  statute  which  seems 
to  have  been  much  debated,  for  it  is  continually  being  re- 
pealed and  re-enacted  for  a  hundred  years  to  follow. 

(1392)  The  Statute  of  York,  giving  free  trade  to  merchants, 
is  re-enacted,  and  it  is  specified  that  they  may  sell  in  gross  or 
by  retail  "notwithstanding  any  Franchise,  Grant  or  Custom," 
but  they  are  forbidden  to  sell  to  each  other  for  purposes  of 
regrating  and  they  must  sell  wines  in  the  original  package 
and  "Spicery  by  whole  Vessels  rnd  Bales."  "All  the 
weights  and  measures  throughout  the  Realm  shall  be  accord- 
ing to  the  Standard  of  the  Exchequer" — save  only  in  Lan- 
cashire, where  they  are  used  to  giving  better  measure. 

(1402)  Laborers  are  forbidden  to  be  hired  by  the  week  or 
to  be  paid  for  holidays  or  half  days.  In  1405  the  old  Stat- 
ute of  Laborers  is  re-enacted,  particularly  the  cruel  law  for- 
hidding  any  one  to  take  up  any  other  trade  than  husbandry 
after  the  age  of  twelve,  nor  can  any  one  bind  his  child  as  ap- 
prentice to  learn  a  trade  unless  he  has  twenty  shillings  per 
annum  in  landed  property. 

(1414)  The  2d  of  Henry  V  recites  the  Statute  of  the  13th 
of  Henry  IV  against  rioters,  but  power  to  suppress  them  is 
intrusted  to  the  justices  of  the  peace  and  the  common-law 
courts  "according  to  the  law  of  the  land."  Only  if  default 
is  made  in  suppressing  them  the  king's  commission  goes  out 
under  the  great  seal,  showing  the  beginning  of  the  use  of 
the  executive  arm  in  suppressing  riots,  of  which  our  most 
famous  instance  was  the  action  of  President  Cleveland  in  the 
Pullman-car  strike  in  Chicago  in  1893.  And  in  the  same 
statute  the  chancery  arm  is  invoked,  that  is  to  say,  if  any 
person  complain  that  a  rioter  or  offender  flee  or  withdraw 
himself,  a  bill  issues  from  the  chancery,  and  if  the  person  do 
not  appear  and  yield,  a  writ  of  proclamation  issues  that  he  be 
attainted,  a  more  severe  punishment  than  the  six  months' 


78  POPULAR  LAW-MAKING 

imprisonment  usually  meted  out  to  our  contemners.  It  is 
interesting  to  notice  that  the  bills  (petitions  for  legislation) 
are  now  in  English;  though  the  statutes  enacted  are  still  in 
French  or  Latin. 

(1425)  A  statute  recites  that  "by  the  yearly  Congregations 
and  Confederacies  made  by  the  Masons  in  their  general 
Chapiters  and  Assemblies,  the  good  Course  and  Effect  of 
the  Statute  of  Labourers  be  openly  violated  .  .  .  and  such 
Chapiters  and  Congregations  are  forbidden  and  all  Masons 
that  come  to  them  are  to  be  punished  by  imprisonment  and 
fine" — an  excellent  example  of  the  kind  of  statute  which 
led  to  the  doctrine  that  trades-unions  were  forbidden  by  the 
common  law  of  England. 

(1427)  The  next  year  the  attempt  to  fix  wages  by  law  is 
again  abandoned,  and  they  are  to  be  fixed  by  the  justices," 
"because  Masters  cannot  get  Servants  without  giving  higher 
Wages  than  allowed  by  the  Statute." 

The  exact  time  of  the  appearance  of  the  modern  corpora- 
tion has  been  a  matter  of  some  doubt.  Its  invention  was 
probably  suggested  by  the  monastic  corporation,  or  the  city 
guild.  This  whole  matter  must  be  left  for  a  later  chapter, 
but  we  must  note  the  phraseology  of  a  statute  of  Henry  VI 
in  1426,  which  speaks  of  "Guilds,  Fraternities,  and  other 
Companies  corporate,"  and  requiring  them  to  record  before 
justices  of  the  peace  all  their  charters,  letters-patent,  and 
ordinances  or  by-laws,  which  latter  must  not  be  against  the 
common  profit  of  the  people,  and  the  justices  of  the  peace  or 
chief  marshal  are  given  authority  to  annul  such  of  their  by- 
laws as  are  not  reasonable  and  for  the  common  profit — 
the  fountain  and  origin  of  a  most  important  doctrine  of  the 
modern  law  of  restraint  of  trade  and  conspiracy. 

(1444)  Servants  in  husbandry  purposing  to  leave  their 
masters  were  required  to  give  warning  by  the  middle  of  the 
term  of  service  so  that  the  "Master  may  provide  another 
Servant  against  the  End  of  his  Term."  Again  a  maximum 
price  is  fixed  for  the  wages  of  servants,  laborers,  and  artif- 


GUILDS  AND  CORPORATIONS  79 

icers:  the  common  servant  of  husbandry,  fifteen  shillings  a 
year,  with  money  for  clothing,  eleven  shillings;  and  women 
servants  ten  shillings,  with  clothing  price  of  four  shillings, 
and  meat  and  drink.  But  winter  wages  are  less  and  harvest 
wages  more  than  in  summer;  and  men  who  refuse  to  serve 
by  the  year  are  declared  vagabonds. 

(1450)  John  Cade  was  attainted  of  treason,  and  in  1452 
comes  the  famous  statute  giving  the  chancellor  power  to 
issue  writs  of  proclamation  against  rioters  or  persons  guilty 
of  other  offences  against  the  peace,  with  power  to  outlaw 
upon  default,  quoted  by  Spence  1  as  the  foundation  of  the 
practice  of  issuing  injunctions  to  preserve  the  peace,  now 
bitterly  complained  of  by  Mr.  Gompers  and  others;  and  it  is 
most  noteworthy  as  sustaining  this  adverse  view  that  the 
Statute  of  Henry  VI  itself  makes  special  exception,  "That 
no  Matter  determinable  by  the  Law  of  this  Realm  shall  be 
by  the  same  Act  determined  in  other  Form  than  after  the 
Course  of  the  same  Law  in  the  King's  Courts  having  Deter- 
mination of  the  same  Law,"  and  the  act  itself  is  only  to  en- 
dure for  seven  years. 

(1487)  This  year  a  Statute  of  Henry  VII  originates  the 
criminal  jurisdiction  of  the  Court  of  Star  Chamber,2  an 
interesting  statute  reciting  that  the  Mayor  and  Aldermen  of 
London  have  forbidden  citizens  to  go  to  fairs  or  markets, 
or  trade  outside  the  city,  which  is  declared  "contrary  to  the 
common  weal  of  England"  and  the  ordinance  made  void.  In 
1495  the  laws  against  riots  and  unlawful  assemblies  are  recited 
and  confirmed,  and  authority  to  punish  and  prevent  them 
given  to  the  justices  and  the  common-law  courts,  except  that 
the  justices  themselves  in  a  case  of  such  disorder  by  more 
than  forty  persons  are  to  certify  the  names  of  the  offenders 

1  "  1  Eq.  Jur.,"  353. 

2  This  court,  says  Lord  Coke,  was  originally  established  to  protect  sub- 
jects against  the  offences  and  oppressions  of  great  men  by  extortion,  frauds, 
riots,  unlawful  assemblies,  etc.,  leaving  ordinary  offences  to  the  courts  of 
common  law,  and  Clarendon  adds  that  "  whilst  it  was  gravely  and  moderately 
governed,  it  was  an  excellent  expedient  to  preserve  the  peace  and  security  of 
the  kingdom."     Nevertheless,  "having  become  odious  by  a  tyrannical  exer- 
cise of  its  powers,  it  was  abolished  by  a  Statute  of  16  Charles  1." 


80  POPULAR  LAW-MAKING 

to  the  king  and  his  council  (that  is  to  say,  the  Star  Chamber) 
for  punishment.  In  1495  the  wages  of  servants  in  husbandry 
and  of  artificers  and  shipwrights,  master-masons  and  car- 
penters are  again  fixed,  with  the  hours  of  work  and  meal 
time  provided;  in  March,  from  5  A.  M.  till  7  or  8  p.  M.,  but 
with  half  an  hour  for  breakfast,  an  hour  and  a  half  for  dinner, 
and  half  an  hour  for  supper,  and  in  winter  time  from  dawn 
till  sunset,  and  "said  Artificers  and  Laborers  shall  slepe  not 
by  day"  except  between  May  and  August;  but  this  whole 
act  "for  the  common  wealth  of  the  poor  artificers"  is  re- 
pealed the  following  year. 

(1503)  This  year  there  is  another  important  statute  against 
private  and  illegal  by-laws,  reciting  that  "companies  corpo- 
rate by  color  of  rule  and  governance  to  them  granted  and 
confirmed  by  charters  and  letters  patent  of  divers  Kings 
made  among  themselves  many  unlawful  and  unreasonable 
ordinances  as  well  in  price  of  wares  as  other  things  for  their 
own  singular  profit  and  to  the  common  hurt  and  damage  of 
the  people,"  and  such  by-laws  are  forbidden  unless  specially 
authorized  by  some  official  such  as  the  chief  governor  of  the 
city.  The  law  so  far  dates  from  the  15th  of  Henry  VI;  but 
the  present  act  goes  on  to  provide  that  "no  masters,  fellow- 
ships of  crafts  or  rulers  of  guilds  or  fraternities  make  any 
acts  or  ordinances  against  the  common  profit  of  the  people 
but  with  the  examination  and  approval  of  the  Chancellor  and 
Chief  Justice  of  England,  and  that  there  shall  never  be  any 
by-law  to  restrain  any  person  from  suits  in  the  common-law 
courts."  A  Federal  statute  similar  to  this  was  proposed  by 
a  late  president  to  apply  to  all  corporations,  or  at  least  to  all 
corporations  conducting  interstate  commerce;  the  approval 
of  their  by-laws  or  other  contracts  to  be  by  the  Federal  com- 
missioner of  corporations;  while  the  last  section  forbidding 
trades-unions  to  deny  to  their  members  the  right  of  suing 
them  or  other  persons  in  the  ordinary  courts  is  part  of  our 
constitutional  law  to-day  and  much  objected  to  by  the  unions 
themselves,  as  it  was  in  the  time  of  Henry  VII.  The  tend- 


HOURS  OF  LABOR  LAWS  81 

ency  to  create  special  courts  (commerce,  patents,  etc.)  seems 
to  be  beginning  anew,  despite  the  malign  history  of  the 
ancient  courts  of  the  Constable  and  Marshal,  Star  Chamber, 
Requests,  Royal  Commissions,  etc. 

(1512)  Under  Henry  VIII  the  penalty  for  paying  higher 
wages  than  the  law  allowed  was  removed  from  the  employer 
and  applied  only  to  the  employee  taking  the  wage;  and  in 
1514  comes  perhaps  the  most  elaborate  of  all  the  earlier  acts 
fixing  the  wages  and  hours  of  labor.  Their  meal  times  and 
sleep  times  are  carefully  regulated,  they  are  forbidden  to  take 
full  wages  for  half-day's  work  and  forbidden  to  leave  a  job 
until  it  is  finished,  and  the  rates  of  pay  of  bailiffs,  servants, 
free  masons,  master  carpenters,  rough  masons,  bricklayers, 
tilers,  plumbers,  glaziers,  carvers,  joiners,  shipwrights,  ship 
carpenters,  calkers,  clinchers,  agricultural  laborers,  both  men 
and  women,  mowers,  reapers,  carters,  shepherds,  herdsmen, 
and  possibly  others,  are  again  prescribed;  this  list  of  trades 
in  the  England  of  the  early  sixteenth  century  is  interesting. 
Bailiffs  who  assault  their  overseers  may  be  imprisoned  for  a 
year,  and  an  exception  is  made  from  the  act  of  all  miners 
of  lead,  iron,  silver,  tin,  or  coal,  "called  See  Cole,  otherwise 
called  Smythes  Coole,"  or  for  making  of  glass,  but  that  part 
of  the  act  fixing  wages  was  repealed  the  very  next  year  as  to 
the  city  of  London. 

(1514)  The  abuse  of  monopolies  begins  to  be  shown  this 
year  (but  see  also  1503,  above)  in  a  statute  complaining  of  the 
grant  of  second  patents  of  a  matter  already  granted;  and 
avoiding  in  such  cases  the  later  patent  unless  the  king  express 
that  "he  hath  determined  his  pleasure  against  the  first." 

The  appearance  of  the  gypsies  in  England  is  marked  by  a 
statute  of  1530,  describing  them  as  "outlandish  people  called 
Egyptians,"  complaining  of  their  robberies,  and  requiring 
them  to  depart  the  realm.  In  the  same  year  first  appeared 
the  celebrated  Act  for  the  punishment  of  beggars  and  vaga- 
bonds and  forbidding  beggary,  and  requiring  them  to  labor 
or  be  whipped.  Herbert  Spencer  states  in  his  "Descriptive 


82  POPULAR  LAW-MAKING 

Sociology"  that  it  punishes  with  loss  of  an  ear  the  third 
conviction  for  joining  a  trades-union,  which,  if  true,  would 
justify  much  of  the  bitterness  of  modern  labor  unions  against 
the  common  law.  The  provision  evidently  referred  to  (22 
Henry  VIII,  chapter  12,  section  4)  applies,  however,  not  to 
guilds,  but  to  "Scolers  of  the  Universities  of  Oxford  and 
Cambridge  that  go  about  begging  not  being  authorized  under 
the  seal  of  the  said  Universities"  as  well  as  to  other  beggars 
or  vagabonds  playing  "  subtile,  crafty  and  unlawful  games 
such  as  physnomye  or  palmestrye."  The  same  year  is  an 
interesting  statute  against  foreign  artificers  exercising  handi- 
crafts in  England,  not  without  example  in  the  labor  legis- 
lation of  our  modern  States;  but  exempting  beggars,  brew- 
ers, surgeons,  and  scriveners  as  not  handicraftsmen,  possibly 
the  origin  of  the  vulgar  notion  that  those  trades  are  more 
genteel  than  skilled  labor. 

(1535)  Another  statute  against  sturdy  vagabonds  and  "ruf- 
flers  found  idling  after  being  assigned  to  labor,"  and  already 
having  their  ears  so  slit,  are  punishable  with  death.  This 
year  Wales  was  joined  to  England;  and  we  see  the  first  act 
for  the  suppression  of  monasteries;  the  next  year  came  the 
statute  extinguishing  the  authority  of  the  Bishop  of  Rome. 
With  the  struggle  against  the  Roman  Church  went  the  con- 
test for  freedom;  inter  arma  silent  leges;  sociological  legis- 
lation came  to  an  end  for  the  rest  of  the  reign  and  arbitrary 
laws  passed  at  the  king's  desire;  in  1536,  the  act  authorizing 
kings  of  England,  on  arriving  at  the  age  of  twenty-four,  to 
repeal  any  act  of  Parliament  made  during  their  minority,  and 
in  1539  the  "Act  that  Proclamations  made  by  the  King  shall 
be  obeyed" — the  high-water  mark  of  executive  usurpation 
in  modern  times.  Proclamations  made  by  the  king  and 
council  were  to  have  the  force  of  acts  of  Parliament,  yet 
not  to  prejudice  estates,  offices,  liberties,  goods  or  lives,  or 
repeal  existing  laws;  the  cardinal  constitutional  rights  were 
thus  preserved,  even  as  against  this  royal  aggression. 

(1548)  Under  Edward  VI  and  Elizabeth  we  may  expect 


TRUSTS  AND  LABOR  COMBINATIONS  83 

more  enlightened  legislation,  and  are  not  disappointed.  In- 
deed, no  one  can  read  the  statutes  of  the  great  queen  without 
seeing  that  modern  times  here  begin.  Nevertheless,  while 
trade  is  becoming  free,  labor  is  no  less  severely,  if  more  intel- 
ligently, regulated.  We  first  note  a  short  but  important 
statute  touching  victuallers  and  handicraftsmen,  worth  quot- 
ing in  part:  "Forasmuche  as  of  late  dayes  divers  sellers  of 
vittayles,  not  contented  withe  moderate  and  reasonable  gayne 
.  .  .  have  conspyred  and  covenanted  together  to  sell  their 
vittels  at  unreasonable  price;  and  lykewise  Artyficers  handy- 
craf  te  men  and  laborers  have  made  conf ederacyes  and  prom- 
yses  and  have  sworne  mutuall  othes,  not  onlye  that  they 
shoulde  not  meddle  one  withe  an  others  worke,  and  per- 
forme  and  fynishe  that  an  other  hathe  begone,  but  also  to 
constitute  and  appoynt  howe  muche  worke  they  shoulde 
doe  in  a  daye  and  what  bowers  and  tymes  they  shall  work, 
contrarie  to  the  Lawes  and  Statutes  of  this  Realme"  (It  is 
extraordinary  how  closely  this  old  statute  sets  forth  some 
practices  of  the  modern  trades-union.)  "Everie  person  so 
conspiring  covenantinge  swearing  or  offendinge  .  .  .  shall 
forfeyt  for  the  firste  offence  tenne  pounds  ...  or  twentie 
dayes  ymprisonment"  with  bread  and  water;  for  the  second 
offence,  twenty  pounds  or  the  pillory,  and  for  the  third  offence 
forty  pounds,  or  the  pillory  and  lose  one  of  his  ears.  After 
that  he  is  to  be  taken  as  a  man  infamous  and  his  oath  not  to 
be  credited  at  any  time,  and  if  there  be  a  corporation  of  deal- 
ers in  victuals  or  of  handicraftsmen  so  conspiring,  it  shall 
be  dissolved — the  origin  and  precedent  of  the  Sherman 
Act !  This,  of  course,  is  the  statute  which  Herbert  Spencer 
cites  as  making  a  "third  conviction  for  joining  a  trades- 
union  punished  with  loss  of  an  ear";  but  he  places  the 
date  at  1535  instead  of  1548.  The  statute,  however,  goes 
on  to  provide  absolute  freedom  of  employment  or  trade  for 
all  skilled  mechanics  in  any  town,  although  not  freemen 
thereof,  whether  they  dwell  there  or  not,  any  town  or  guild 
by-law  to  the  contrary  notwithstanding;  so  that  this  impor- 


84  POPULAR  LAW-MAKING 

tant  statute  may  be  said  to  establish  the  most  enlightened 
view  that  there  must  be  absolute  liberty  of  employment 
granted  any  one,  only  that  they  must  not  conspire  to  the  in- 
jury of  others.  Unfortunately,  in  the  very  next  year  this  last 
part  is  repealed  as  to  the  city  of  London,  "Artificers  and 
Craftmen  of  that  ancient  City  complaining  that  it  was  con- 
trary to  their  ancient  privilege,"  a  view  as  modern  as  is  the 
law  itself.  Immediately  after  this  law  is  one  providing  that 
journeymen,  clothiers,  weavers,  tailors,  and  shoemakers  shall 
not  be  hired  for  less  than  a  quarter  of  a  year  on  penalty  of 
imprisonment  to  them  and  the  employer,  the  statute  reciting 
that,  once  out  of  their  apprenticehood,  they  "will  not  com- 
monly be  retained  in  service  by  the  year,  but  at  their  liberty 
by  the  day,  week  or  otherwise,  to  the  intent  that  they  will 
live  idly,  and  at  their  pleasure  flee  and  resort  from  place  to 
place,  whereof  ensuith  more  incovenyencies  then  can  be  at 
this  present  expressed  and  declared" — an  inconvenience  not 
unknown  in  modern  intelligence  offices.  All  employers  hav- 
ing more  than  three  apprentices  shall  keep  at  least  one  jour- 
neyman, and  unmarried  servants  in  husbandry  must  serve 
by  the  year. 

(1550)  In  the  3d  of  Edward  VI  we  find  the  first  Riot  Act, 
aimed  at  persons  to  the  number  of  twelve  or  above  assembling 
together  and  proposing  to  alter  the  laws  and  not  dispersing 
when  so  required  by  the  sheriff,  and  even  persons  more  than 
two  and  less  than  twelve  assembling  for  such  purpose  are  sub- 
ject to  fine  and  imprisonment  with  treble  damages  to  parties 
injured,  and  if  forty  persons  so  assemble  and  do  not  disperse 
in  three  hours,  they  are  declared  felons.  This  statute  was 
re-enacted  and  made  more  severe  in  the  reign  of  Queen  Mary. 

(1562)  In  the  5th  of  Elizabeth  comes  the  last  and  greatest 
Statute  of  Laborers.  This  statute  is  a  consolidation  of  all 
previous  laws,  and  it  begins  by  recognizing  the  principle  that 
the  fixing  of  wages  is  a  mistake  and  all  such  laws  are  repealed 
so  far  as  they  relate  to  terms  of  hiring  and  wages.  Servants 
in  certain  employments,  generally  speaking  the  tailoring  and 


EARLY  LABOR  REGULATIONS  85 

shoemaking  trades,  may  still  be  hired  by  the  year,  and  per- 
sons unmarried,  not  having  an  income  of  forty  shillings  a 
year,  may  be  compelled  to  serve  in  their  own  handicraft. 
Such  yearly  servants  may  not  be  dismissed  or  depart  during 
the  year  except  by  cause  allowed  by  two  justices,  nor  at  the 
end  of  a  year,  without  a  quarter's  warning.  Unmarried  per- 
sons under  thirty,  not  having  any  trade  and  not  belonging  to 
a  nobleman's  household,  may  be  compelled  to  labor  at  the 
request  of  any  person  using  an  art  or  mystery,  and  all  persons 
between  twelve  and  sixty  not  otherwise  employed  may  be 
compelled  to  serve  by  the  year  in  husbandry.  The  masters 
may  not  dismiss,  nor  the  servants  unduly  depart;  nor  leave 
the  city  or  parish  of  their  service  without  a  testimonial;  that 
is  to  say,  a  certificate  of  due  cause  under  the  seal  of  the  town 
or  constable  and  two  honest  householders.  The  hours  of 
labor  are  still  fixed  from  5  A.  M.  to  7  P.  M.,  between  March 
and  September,  with  two  and  one-half  hours  for  meal  times, 
drink  times,  and  sleep.  From  September  to  May,  from 
dawn  to  sunset,  and  sleep  times  only  allowed  from  May  to 
August.  A  penalty  of  one  month's  imprisonment  and  fine 
is  imposed  on  artificers  and  laborers  leaving  their  work  un- 
finished. Wages  are  still  to  be  fixed  by  the  justices  of  the 
peace,  and  it  is  made  a  penal  offence  to  give  or  receive  higher 
wages  than  the  lawful  rate,  and  all  contracts  for  higher  wages 
are  void.  Unmarried  women  between  twelve  and  forty  may 
be  compelled  to  serve  in  like  manner,  and  everybody  has  to 
work  at  harvest  time,  that  is  to  say,  artificers  as  well  as 
laborers.  The  elaborate  law  of  apprenticeship  dates  also 
from  this  great  statute,  and  no  one  can  use  a  manual  art  who 
has  not  been  apprenticed  to  the  same  for  seven  years.  One 
journeyman  shall  be  kept  for  each  three  apprentices;  dis- 
putes are  to  be  settled  by  the  justices  of  the  peace,  and  indeed 
the  whole  labor  contract  is  regulated  as  carefully  as  the  most 
statute-mad  of  modern  labor  leaders  could  desire,  though 
hardly,  perhaps,  then,  in  the  sole  interest  of  the  workingman. 
If  this  statute  was  ever  repealed,  it  was  in  very  recent  times. 


86  POPULAR  LAW-MAKING 

(1571)  The  year  of  the  statute  against  fraudulent  convey- 
ances, and  of  another  poor  law,  with  provisions  for  the 
punishment  of  "rogues,  vagabonds  and  sturdy  beggars," 
who  are  defined  to  include  those  going  about  the  country 
"using  sybtyll  craftye  and  unlawfull  Games  or  Playes  .  .  . 
Palmestrye  ...  or  fantasticall  Imaginacons.  .  .  .  Fencers 
Bearewardes  and  Common  Players/'  and  the  penalty  for 
harboring  such  vagabonds  was  twenty  shillings.  We  are  a 
long  time  from  the  knighting  of  Sir  Henry  Irving.  In  1575 
comes  another  act  for  setting  the  poor  to  work,  and  the  pun- 
ishing of  tramps  and  beggars. 

In  1571  also  is  the  first  formal  complaint  of  monopolies 
by  the  Commons.  Coal,  oil,  salt,  vinegar,  starch,  iron,  glass, 
and  many  other  commodities  were  all  farmed  out  to  individ- 
uals and  monopolies;  coal,  mentioned  first,  is  still,  to-day, 
the  subject  of  our  greatest  monopoly;  while  oil,  mentioned 
fourth,  is  probably  the  subject  of  our  second  greatest  mo- 
nopoly; and  iron,  mentioned  seventh,  is  probably  the  third. 
Conditions  have  not  changed.  The  only  reason  we  don't  have 
salt  still  a  monopoly  is  on  account  of  the  numerous  sources 
and  processes  for  obtaining  it  from  mines  and  from  the  sea; 
Fugger,  the  John  D.  Rockefeller  of  the  sixteenth  century 
(whose  portrait  in  Munich  strongly  resembles  him),  had  a 
monopoly  of  the  salt  mines  of  all  Germany.  The  conditions 
have  maintained  themselves,  even  as  to  the  very  articles. 
This  grievance  was  first  mooted  in  Parliament  in  1571  by  a 
Mr.  Bell,  "who  was  at  once  summoned  before  the  Council." 
This  council  was  the  King's  Council,  or  Privy  Council — a 
body  roughly  corresponding  to  our  United  States  Senate. 
He  was  summoned  before  the  council  for  objecting  because 
coal,  oil,  salt,  vinegar,  starch,  iron,  glass,  were  the  subjects 
of  monopoly;  and  he  "returned  to  the  House  with  such  an 
amazed  countenance  that  it  daunted  all  the  rest."  That 
is  very  much  the  fate  of  the  tariff  reformer  to-day,  if  we  may 
credit  the  tales  of  those  returning  from  Washington. 

After  a  lapse  of  twenty-six  years  the  Commons  ventured 


GROWTH   OF  MONOPOLIES  87 

again.  This  time  the  queen  replied  that  she  hoped  her  duti- 
ful and  loving  subjects  would  not  take  away  her  prerogative, 
which  is  the  choicest  flower  in  her  garden,  but  promised  to  ex- 
amine all  patents  and  abide  the  touchstone  of  the  law.  Never- 
theless, four  years  later  the  list  of  articles  subject  to  monopoly 
was  so  numerous  that  when  it  was  read  over  to  the  House  in 
1601  an  indignant  member  exclaimed:  "  Is  not  bread  amongst 
them?  Nay,  if  no  remedy  is  found  for  these,  bread  will  be 
there  before  the  next  Parliament."  The  Populists  openly 
cursed  the  monopolies  and  declared  that  the  prerogatives 
should  not  be  suffered  to  touch  the  old  liberties  of  England. 
Seeing  that  resistance  was  no  longer  politic,  Elizabeth  sent 
a  message  to  the  House  saying  that  some  of  these  monopolies 
should  be  presently  repealed,  some  superseded,  and  none 
put  in  execution  but  such  as  should  first  have  a  trial  ac- 
cording to  law  for  the  good  of  the  people;  and  Robert  Cecil, 
the  secretary,  added  an  assurance  that  all  existing  patents 
should  be  revoked  and  no  others  granted  for  the  future. 
The  Commons  waited  upon  the  queen  with  an  address  of 
thanks,  to  which  she  replied  almost  affectionately  that  never 
since  she  had  been  queen  "did  I  put  my  pen  to  any  grant 
but  upon  pretence  made  to  me  that  it  was  good  and  benefi- 
cial to  the  subjects  in  general,  though  a  private  profit  to 
some  of  my  ancient  servants  who  had  deserved  well.  Never 
thought  was  cherished  in  my  heart  which  tended  not  to 
my  people's  good/'  Notwithstanding  these  fair  words,  the 
House  of  Commons  found  it  necessary  to  enact  the  Great 
Statute  against  Monopolies. 

(1623)  In  the  beginning,  the  statute  recites  that  "Your 
most  excellent  Majestic  in  your  Royall  Judgment  .  .  .  did 
in  the  yeare  .  .  .  1610  .  .  .  publish  in  Print  to  the  whole 
Realme  and  to  all  Posteritie,  that  all  Graunt  of  Monapolyes 
and  of  the  benefitt  of  any  penall  Lawes,  or  of  power  to  dis- 
pence  with  the  Lawe  .  .  .  are  contrary  to  your  Majesties 
Lawes,  which  your  Majesties  Declaracon  is  truly  consonant 
and  agreeable  to  the  auncient  and  fundamentall  Lawes  of 


88  POPULAR  LAW-MAKING 

this  your  Realme.  .  .  .  Nevertheles  .  .  .  many  such  Graunts 
have  bene  undulie  obteyned  .  .  .  For  avoyding  whereof  and 
preventinge  of  the  like  in  tyme  to  come,  May  it  please  your 
most  excellent  Majestic  .  .  .  that  it  may  be  declared  and 
enacted,  and  be  it  declared  and  enacted  by  the  authoritie 
of  this  present  Parliament  That  all  Monapolies  and  all  Com- 
missions Graunts  Licenses  Charters  and  lettres  patents  here- 
tofore made  or  graunted,  or  hereafter  to  be  made  or  graunted 
to  any  person  or  persons  Bodies  Politique  or  Corporate 
whatsoever  of  or  for  the  sole  buyinge  sellinge  makinge  work- 
inge  or  usinge  of  any  things  within  this  Realme  or  the  Do- 
minion of  Wales,  or  of  any  other  Monopolies,  or  of  Power 
Libertie  or  Facultie  to  dispence  with  any  others,  or  to  give 
Licence  or  Toleracon  to  doe  use  or  exercise  any  thinge 
against  the  tenor  or  purport  of  any  Lawe  or  Statute  .  .  . 
are  altogether  contrary  to  the  laws  of  this  realm  and  so  are 
or  shall  be  utterly  void  and  in  no  wise  to  be  put  in  use  or 
execution."  Section  2  provides  that  all  such  monopolies 
and  the  force  and  validity  of  them  ought  to  be  and  should 
forever  hereafter  be  examined,  tried,  and  determined  by 
and  according  to  the  common  law;  section  4,  that  a  party 
aggrieved  might  have  treble  damages,  as  in  our  modern 
Sherman  Act.  There  followed  provisos  for  exempting  exist- 
ing patents  for  twenty-one  years  or  less  for  new  inventions  or 
like  future  patents  for  fourteen  years  or  less,  the  charters  of 
the  city  of  London,  or  any  custom  or  customs  of  London,  or 
any  other  city  or  town,  for  corporations,  companies,  or  fellow- 
ships of  any  art,  trade,  occupation,  or  mystery;  that  is  to  say, 
exempting  the  guilds,  but  these  guilds  by  this  time  had  long 
ceased  to  be  societies  of  actual  journeymen  or  handicraftsmen. 
This  great  statute  may  fairly  be  classed  among  the  consti- 
tutional documents  of  England,  and  it  left  the  great  fabric 
of  the  English  common  law  guaranteeing  freedom  of  labor 
and  liberty  of  trade,  Magna  Charta  itself  recognizing  this 
principle,  and  the  Statute  of  Westminster  I  forbidding  fore- 
stalling and  excessive  toll  contrary  to  the  laws  of  England, 


THE  STATUTE  OF  MONOPOLIES  89 

as  it  has  remained  until  the  present  day — only  rediscovered 
in  the  statutes  of  our  Southern  and  Western  States  aimed 
against  trusts,  and  reapplied  by  Congress,  in  the  Sherman 
Act,  to  interstate  commerce;  but  in  neither  case  added  to, 
nor,  possibly,  improved. 

Two  years  before  this  great  statute,  the  process  of  impeach- 
ment, not  employed  for  nearly  two  hundred  years,  had  been 
revived  against  Sir  Giles  Mompesson  and  Sir  Francis  Mitch- 
ell, who  in  the  Parliament  of  1621  were  impeached  "for 
fraud  and  oppression  committed  as  patentees  for  the  exclu- 
sive manufacture  of  gold  and  silver  thread,  for  the  inspection 
of  inns  and  hostelries,  and  for  the  licensing  of  ale-houses. 
While  no  definite  articles  were  presented  according  to  mod- 
ern forms,  an  accusation  was  made  by  the  Commons  and  a 
judgment  rendered  by  the  Lords,  condemning  both  to  fine, 
imprisonment,  and  degradation  from  the  honor  of  knight- 
hood." Nevertheless,  Charles  I  revived  the  system  of  mo- 
nopolies and  raised  revenue  by  their  application  to  almost 
every  article  of  ordinary  consumption  as  well  as  by  enormous 
fines  inflicted  through  the  Star  Chamber,  both  important 
matters  leading  to  his  dethronement.1  Elizabeth  granted 
monopolies  on  the  perfectly  madern  pretence  that  a  monop- 
oly, be  it  made  by  law  or  by  tariff,  is  for  the  benefit  of  the 
public  good,  though  at  the  same  time  possibly  a  private 
profit  to  certain  individuals,  friends  of  the  sovereign. 

But  all  this  early  legislation  of  England  was  far  better  and 
more  advanced  than  our  own;  for  in  all  these  questions  of 
duties  on  exports  and  duties  on  imports  and  monopolies,  they 
never  consider  the  man  who  has  the  monopoly,  the  producer; 
but  always  they  are  avowed  to  be,  petitioned  for,  declared  to 
be,  only  in  the  interests  of  the  consumer;  which  cannot  be  said 
to  be  the  case  with  ourselves. 

»  See  Dowell,  "  History  of  Taxation,"  vol.  I,  pp.  204-209. 


OTHER  LEGISLATION  IN  MEDLEVAL  ENGLAND 

(1275)  The  Statute  of  Westminster  I  has  sometimes  been 
termed  a  great  English  code;  it  is  certainly  a  comprehensive 
statement  by  statute  of  a  considerable  portion  of  existing 
law.  In  our  consideration  of  labor  and  conspiracy  laws 
we  have  had  to  include  statutes  of  later  centuries.  Now, 
returning  to  the  year  of  the  Statute  of  Westminster,  we 
found,  in  1275,  also  the  Statute  of  Bigamy,  aimed  against 
priests  with  more  than  one  wife.  It  is  to  be  noted  that  this 
was  centuries  before  the  celibacy  of  priests  became  one  of 
the  doctrines  of  the  Roman  Catholic  Church.  It  is  also  in- 
teresting that  this  early  statute  refers  to  the  pope  as  "the 
Bishop  of  Rome" — but  only  as  printed  since  1543. 

(1279)  The  Statute  of  Mortmain,  aimed  at  the  holding 
of  land  in  large  quantities  by  religious  corporations,  was  a 
true  constructive  statute,  and  the  principle  it  establishes  has 
grown  ever  since.  The  law  regards  with  jealousy  the  owner- 
ship of  land  by  any  corporation;  the  presumption  is  against 
the  power,  and  it  extends  to-day  to  all  corporations,  and  par- 
ticularly to  alien  corporations  (see  chapter  7);  and  in  1283 
came  the  Statute  of  Acton  Burnel,  re-enacted  in  1285  and 
called  the  "Statute  Merchant,"  equally  important.  It  pro- 
vides for  the  speedy  recovery  of  debts  due  merchants,  and 
is  the  foundation  of  all  our  modern  law  of  pledge,  sales  of 
collateral,  etc.  It  is  distinctly  an  innovation  on  the  common 
law;  for  in  those  days  there  was  no  method  of  collecting 
ordinary  money  debts.  You  could  levy  on  a  man's  land, 
but  there  really  seems  to  have  been  no  method  of  recovering 

90 


THE  LAW  MERCHANT  91 

a  debt  contracted  in  trade;  and  this  is  the  first  of  many 
statutes  adopting  foreign  ideas  as  to  matters  of  trade,  and 
the  customs  of  merchants,  drawn  frequently  from  the  Lom- 
bard or  Jew  traders  of  the  Continent,  which,  by  statute  law, 
custom,  or  court  decision,  has  since  become  such  a  consider- 
able body  of  the  English  law  as  to  have  a  name  to  itself — 
the  "Law  Merchant."  This  first  statute  provides  for  im- 
prisonment for  debt;  "if  he  have  no  goods  to  be  seized  the 
debtor  is  to  be  imprisoned,  but  the  creditor  shall  find  him 
bread  and  water."  A  foreigner  coming  to  England  to  re- 
cover a  debt  may  also  recover  the  expenses  of  his  trip;  and 
the  statute  is  further  liberal  in  that  it  does  away  with  the 
Droit  d'Aubaine,  that  narrow-minded  custom  by  which  the 
goods  or  personal  property  of  any  person  who  died  passing 
through  the  kingdom  were  seized  by  the  authorities  and 
could  not  be  recovered  by  his  heirs.  This  mediaeval  injus- 
tice continued  for  some  centuries  in  Germany  and  France, 
and  we  can  hardly  say  that  the  notion  is  extinct  in  this  coun- 
try when  a  State  like  California,  by  her  system  of  public 
administrators,  practically  impounds  a  large  proportion  of 
all  personal  property  owned  by  non-residents  at  their  death. 
Cases  have  been  known  where  it  cost  the  executor  more  than 
one-third  of  the  money  to  collect  a  mortgage,  owned  by  a 
deceased  citizen  of  Massachusetts,  in  California;  and  for 
that  reason,  among  others,  Eastern  lawyers  have  advised 
against  investments  in  that  State;  for  the  public  adminis- 
trators are  usually  petty  politicians  in  search  of  a  job.  The 
increasing  burden  of  our  State  inheritance  tax  laws,  whereby 
every  State  wherein  a  corporation  exists  besides  the  State 
of  the  deceased  seizes  its  percentage  of  the  stock  of  such 
corporation  in  the  hands  of  the  executors,  is  another  step 
in  this  direction.  This  early  Statute  Merchant,  liberal  in 
other  respects,  still  excludes  Jews  from  its  benefits. 

(1284)  Jury  trial  was  well  established  by  this  time,  for 
the  Statute  of  Wales  includes  it  in  its  code  of  procedure  for 
that  principality.  The  great  Statute  De  Donis,  or  West- 


92  POPULAR  LAW-MAKING 

minster  II,  came  the  following  year;  most  interesting  to 
lawyers  as  the  foundation  of  estates  tail;  but  it  also  regu- 
lates "assizes  or  juries"  that  "rich  men  do  not  abide  at 
home  by  reason  of  their  bribes."  It  also  specifically  requires 
indictment  "of  twelve  lawful  men  at  least,"  and  gives  an 
action  against  sheriffs  imprisoning  without  such  warrant  "as 
they  should  have  against  any  other  person."  Rape,  ten  years 
before  made  punishable  only  by  two  years'  imprisonment, 
is  now  made  an  offence  punishable  by  loss  of  life  or  member; 
showing  how  our  ancestors  treated  a  burning  question,  at 
least  in  our  Southern  States,  of  to-day.  Finally,  it  confirms 
and  explains  the  writ  de  odio  et  atia,  the  predecessor  of  the 
modern  habeas  corpus.  Some  writers  have  doubted  whether 
this  writ  existed  as  a  practical  remedy  much  before  the  Stat- 
ute of  Charles  II ;  but  here  it  says  that  parties  indicted,  etc., 
are  to  have  the  writ  de  odio  et  atia  "lest  they  be  kept  long 
in  prison,  like  as  it  is  declared  in  Magna  Charta."  This  can 
only  refer  to  C.  36  of  John's  Charter,  "the  writ  of  inquest  of 
life  or  limb  to  be  given  gratis  and  not  denied";  and  taken 
in  connection  with  the  action  for  damages  just  given  affords 
a  fairly  complete  safeguard  to  personal  liberty.  It  also  con- 
tains the  first  game  law,  protecting  "salmons."  "There  are 
salmons  in  Wye,"  says  Shakespeare,  and  we  are  reminded 
of  it  because  the  Statute  of  Winchester  in  the  same  year 
contains  a  provision  that  is  almost  literally  quoted  by  Dog- 
berry in  "Twelfth  Night."  It  provides  for  the  gates  of 
great  towns  to  be  shut  at  sunset,  and  that  no  citizen  should 
bear  arms,  and  no  tavern  sell  drink  after  9  P.  M.,  and  then 
it  comes  to  the  duties  of  the  watch,  which  are  described  in 
such  like  manner  that  Dogberry's  language  seems  a  mere 
paraphrase.  Whoever  wrote  the  play  certainly  had  read  the 
Statutes  of  the  Realm  for  the  year  1285,  but  so  far  as  I  am 
aware,  the  Baconians  have  not  yet  called  attention  to  this. 
And  the  same  statute  shows  us  how  much  better  police  pro- 
tection the  England  of  1285  gave  than  the  New  York  or 
Chicago  of  1909;  for  all  the  people  dwelling  in  the  hundred 


EARLY  POLICE  REGULATION  93 

or  country  (county)  if  they  do  not  deliver  the  body  of  the 
offender,  "shall  be  answerable  for  the  robberies  done  and 
also  the  damages."  The  same  year  was  a  statute  of  "The 
common  customs  of  the  City  of  London,"  among  which  was 
one  that  "taverns  should  not  be  open  after  9  P.  M.  for  the 
selling  of  wine  or  ale,"  a  regulation  for  their  "tenderloin," 
which  itself  is  described  in  quite  modern  terms;  "none 
shall  walk  the  streets  after  curfew."  Possibly  the  same  year 
is  the  Statute  of  Bakers,  with  careful  provisions  against  putrid 
meat,  worthy  of  consideration  by  our  cold-storage  plants. 
Butchers  selling  unwholesome  flesh,  or  buying  it  of  the  Jews, 
were  severely  punished. 

(1289)  The  Statute  of  Quo  Warranto  is  another  histor- 
ical landmark,  showing  the  jealousy  our  ancestors  felt  of 
officials,  bureaucracy;  a  writ  specially  devised  to  enable 
them  to  challenge  the  right  of  any  magnate  who  pretended 
to  power  by  virtue  of  holding  office,  and  the  predecessor  of 
our  modern  quo  warranto,  which  we  still  use  at  all  times  for 
that  purpose,  not  only  as  against  officers  but  to  test  any  spe- 
cial privileges  or  charters  claimed,  such  as  the  right  to  a  mo- 
nopoly, a  franchise,  a  ferry,  etc.  These  may  be  still  tried 
by  quo  warranto  ;  meaning,  by  what  warrant  do  you  claim 
to  exercise  this  office,  this  monopoly,  this  privilege? 

About  this  time  is  another  statute  forbidding  usury,  and 
permitting  Christian  debtors  to  retain  half  of  all  debts  they 
may  owe  to  the  Jews,  who  are  required  to  wear  the  mark 
of  two  cables  joined  on  their  coats;  and  there  is  the  great 
Statute  of  Westminster  III,  Quia  Emptores,  affecting  land 
tenures,  still  of  importance  to  the  conveyancers.  In  1295 
we  have  the  famous  Model  Parliament;  that  is  to  say,  the 
first  one  where  kings,  lords,  and  commons  were  joined, 
the  legislative  branches  sitting  separately  and  the  Commons 
represented.  Two  years  later  Edward  I,  carrying  on  the 
war  in  Flanders,  was  compelled  to  grant  that  great  con- 
firmation of  the  charters  already  referred  to,  that  no  aid  or 
tax  should  be  taken  but  by  the  common  consent  of  the  realm 


94  POPULAR  LAW-MAKING 

and  for  the  common  profit;  restoring  thus  into  the  recog- 
nized charter  that  important  provision  of  the  original  Char- 
ter of  John;  and  it  provides  that  the  great  charter  shall 
be  read  twice  a  year  in  every  cathedral  in  England.  In  our 
country  I  am  aware  of  no  provision  for  reading  the  Consti- 
tution, though  the  Declaration  of  Independence,  an  obsolete 
document,  is  occasionally  read  upon  the  Fourth  of  July. 

In  1305  the  Anglo-Norman  law  reports  begin,  the  Year 
Books.  From  then  to  now,  at  least,  we  have  continuous 
written  reports  of  all  important  cases  decided  in  England. 
This  is  not  to  say  that  we  do  not  have  them  before  (our  people, 
first  in  the  world's  history,  has  the  records  of  all  its  cases  in 
high  courts  for  nigh  a  thousand  years),  but  they  are  now 
for  the  first  time  systematic. 

(1309)  On  the  accession  of  Edward  II  came  the  Sum- 
mary of  Grievances,  recited  in  the  Statute  of  Stamford  as 
recognized  by  Edward  I  at  the  close  of  his  reign.  The 
seizure  of  supplies  by  the  king  without  due  payment;  the 
maintenance  of  courts  at  the  gates  of  the  king's  castles  in 
derogation  of  the  common-law  courts;  the  taking  of  "new 
customs,"  two  shillings  per  tun  of  wine,  two  shillings  for 
cloth  and  other  imports,  "whereby  the  price  to  the  people  is 
enhanced" ;  the  debasement  of  current  coin;  that  petitions 
of  the  Commons  to  Parliament  were  not  received,  etc.,  etc. 
All  duties  were  then  suspended,  in  order  to  know  and  be 
advised  "what  Profit  and  Advantage  will  accrue  to  him  and 
his  People  by  ceasing  the  taking  of  those  Customs" — a  pre- 
cedent it  were  to  be  wished  we  might  have  the  intelligence 
to  follow  to-day — surely  better  than  a  tariff  commission! 

Two  years  later  came  the  New  Ordinances,  which  con- 
tain a  most  interesting  precedent,  hitherto  almost  unnoted, 
of  the  American  principle  of  having  the  courts  construe  the 
Constitution.  Section  VI:  "It  is  Ordained,  That  the  Great 
Charter  be  kept  in  all  its  points  in  such  manner,  that  if 
there  be  in  the  said  Charter  any  point  obscure  or  doubtful, 
it  shall  be  declared  by  the  said  Ordainours,  and  others  whom 


INTERPRETATION   OF  THE  GREAT  CHARTER      95 

they  will,  for  that  purpose,  call  to  them,  when  they  shall  see 
occasion  and  season  during  their  power."  Section  XXXVIII : 
"That  the  Great  Charter  .  .  .  and  the  Points  which  are 
doubtful  in  it  be  explained  by  the  advice  of  the  Baronage 
and  of  the  Justices,  and  of  other  sage  Persons  of  the  Law." 
It  was  ordained  that  the  king  should  not  go  out  of  the  realm, 
a  precedent  never  violated  until  modern  times,  and  even 
followed  by  our  own  presidents,  except  for  Roosevelt's  trip 
to  Panama  and  Taft's  to  the  borders  of  Mexico.  Again  we 
find  "new  customs"  abolished,  "as  upon  Wools,  Cloths, 
Wines,  Avoir  de  pois,  and  other  Things,  whereby  the  Mer- 
chants come  more  seldom,  and  bring  fewer  Goods  into  the 
Land,  and  the  Foreign  Merchants  abide  longer  than  they 
were  wont  to  do,  by  which  abiding  things  become  more  dear," 
saving  only  to  the  king  his  duty  on  wool  and  leather,  half  a 
mark  for  a  sack  of  wool  and  one  mark  for  a  last  of  leather. 
"The  king  shall  hold  a  Parliament  once  in  the  year  or  twice 
if  need  be,  and  that  in  a  convenient  place."  This  principle 
has  maintained  itself  in  the  English  mind,  still  more  in  the 
American  mind,  ever  since.  To  this  day,  in  Massachusetts, 
for  instance,  we  cannot  get  a  constitutional  amendment  to 
have  the  legislature  sit  only  once  in  two  years,  though  it 
would  probably  be  a  very  wise  reform,  on  account  of  this 
old  inherited  feeling  that  there  is  something  peculiarly  free 
about  an  annual  parliament,  as  indeed  there  is.  The  Anglo- 
Norman  kings  called  parliaments  once  a  year  or  oftener. 
Most  of  the  States  in  this  country  now  have  their  legislatures 
sit  every  two  years.  Alabama  and  some  other  States  have 
recently  changed,  that  they  only  sit  once  in  four  years. 
But  the  conservative  old  States,  like  Massachusetts  and 
New  Jersey,  have  still  the  rule  that  the  legislature  sits  every 
year;  and  the  prejudice  in  favor  of  the  annual  legislature 
goes  back  at  least  as  far  as  this  law  of  1330,  where  the  Com- 
mons succeeded  in  getting  a  law  that  Parliament  should  sit 
as  often  as  once  in  a  year,  and  is  incorporated  in  England's 
and  Massachusetts'  Bill  of  Rights. 


96  POPULAR  LAW-MAKING 

And  then  we  find  the  first  statute  restraining  what  we 
should  now  call  chancery  jurisdiction,  complaining  that  the 
law  of  the  land  and  common  right  was  delayed  by  letters 
issued  under  the  king's  will,  and  ordaining  that  henceforth 
they  shall  not  be  disturbed  by  said  letters  and  nothing  done 
in  any  of  the  places  of  the  court  of  the  king  or  elsewhere  by 
such  letters  against  right  or  the  law  of  the  land  shall  avail. 

In  1313  the  coming  armed  to  Parliament  is  forbidden. 
These  were  troublous  times  and  there  was  little  legislation 
in  consequence,  and  in  1322  Edward  II  secured  the  rev- 
ocation of  the  New  Ordinances  themselves,  but  as  in  all 
such  cases  of  royal  grant  and  withdrawal  the  principles 
shown  are  even  the  more  important  historically.  Of  un- 
certain period  is  the  Statute  of  Jewrie  forbidding  usury  to 
the  Jews,  and  Christians  from  living  among  them,  but  per- 
mitting them  freedom  of  trade  and  exempting  them  from  taxa- 
tion except  to  the  king;  and  a  statute  of  the  usages  and  cus- 
toms of  the  men  of  Kent  beginning  with  the  statement  that 
"all  the  Bodies  of  Kentishmen  be  free,  as  well  as  the  other 
free  Bodies  of  England,"  which  dates  at  least  as  late  as  the 
early  part  of  the  fourteenth  century,  but  still  exemplifying 
the  notion  that  a  statute  should  only  express  law  or  custom 
previously  existing. 

(1327)  The  Statute  of  Northampton,  at  the  beginning  of 
the  reign  of  Edward  III,  confirms  many  of  the  earlier  stat- 
utes, but  abolishes  all  staples  beyond  the  sea  and  on  this 
side,  on  the  ground  that  they  tended  to  monopoly,  and  pro- 
vided that  all  merchants,  strangers,  and  citizens  may  go  and 
come  with  their  merchandises  into  England  after  the  tenor 
of  the  great  charter  (cap.  IX).  In  the  next  year  is  another 
provision  for  annual  parliaments,  and  in  1335  the  Statute 
of  York  again  allows  merchants  to  buy  and  sell  freely  except 
only  enemies,  and  giving  double  damages  for  the  disturbance 
by  any  one  of  such  freedom  of  trade,  and  the  Statute  de  Mo- 
neta,  forbidding  carrying  money  abroad;  which  is  notable 
to  the  student  of  economics  as  showing  how  early  what  we 


EARLY  TARIFFS  ON  WOOL  97 

now  call  the  fallacy  of  the  mercantile  system  appeared. 
Our  ancestors  thought  that  there  was  something  peculiarly 
advantageous  in  a  tariff  or  system  of  duties  which  put  all 
the  money  into  a  country  and  allowed  only  goods  to  go  out; 
and  that  opinion  is  perhaps  not  yet  extinct. 

There  always  seems  to  have  been  a  notion  that  there  is 
something  peculiarly  sacred  about  wool.  So  we  find  that 
in  1337  they  made  it  a  felony  to  carry  wool  out  of  England, 
or  to  wear  cloth  made  out  of  England ;  and  no  clothes  made 
beyond  the  seas  were  to  be  brought  into  England.  That 
notion  that  a  man  ought  to  dress  on  home  products  lies  be- 
hind our  present  McKinley  tariff.  Then,  in  1340,  you  will 
find  another  statute  for  the  liberties  of  merchants,  that  they 
should  be  allowed  the  freedom  of  the  kingdom;  and  a  new 
duty  is  imposed  on  wool.  Then  we  find  the  abolition  of  the 
laws  of  "the  staple";  foreign  staple  towns  had  been  abol- 
ished just  before.  The  "staple"  was  the  town  in  which  one 
commodity  was  mainly  dealt  in.  Every  commodity  in  Eng- 
land had  some  particular  town,  where  the  principal  market 
was  for  it;  just  as,  with  us,  the  boot  and  shoe  market  of  the 
United  States  is  supposed  to  be  in  Boston,  the  money  market 
in  New  York,  beef  and  hogs  in  Chicago.  In  England,  in 
the  Middle  Ages,  they  really  provided  that  a  certain  trade 
should  have  its  home  in  a  certain  town;  not  necessarily  the 
only  one,  but  very  often  in  that  one  only.  Thus  there  were 
certain  towns  for  the  carrying  on  of  the  wool  industry;  you 
could  only  trade  in  wool  in  those  towns.  The  word  "sta- 
ple," from  meaning  the  town  or  market,  got  applied  by  an 
easy  process  to  the  commodity  dealt  in;  so  that  when  we 
now  say  that  the  Vermont  staple  is  hay,  we  mean  that  this 
is  the  main  crop  raised  in  Vermont.  But  the  staple — like 
the  modern  stockyard  or  exchange — tended  to  monopoly 
and  was  abolished  for  this  reason. 

In  1340  and  1344  we  find  two  picturesque  statutes  showing 
how  the  English  were  getting  jealous  of  the  Norman  kings: 
"The  realm  and  people  of  England  shall  not  be  subject  to 


98  POPULAR  LAW-MAKING 

the  King  or  people  of  France" — that  is,  that  the  customs 
and  law  of  France,  although  their  kings  were  French,  were 
not  to  be  applied  to  England.  Then  in  the  royal  edict  that 
year  when  King  Edward  assumed  the  title,  King  of  France, 
they  caused  him  to  put  in  a  statement  that  no  inference  was 
to  be  drawn  from  his  assuming  the  flower  de  luces  in  the 
first  quarter  of  his  arms.  The  present  English  coat  of  arms 
is  modern;  instead  of  having  the  Norman  leopards  in  the 
upper  right  hand  and  lower  left  hand,  they  then  had  the 
blue  field  and  the  fleurs  de  lys  of  France  in  the  upper,  and 
the  Norman  leopards  only  in  the  lower  corner;  and  this 
lasted  until  the  time  of  Charles  I.  In  that  part  of  Normandy 
which  now  still  remains  to  the  English  crown,  that  is,  in 
Guernsey  and  Jersey,  you  find  to-day  that  only  the  leopards, 
not  the  arms  of  Great  Britain,  are  in  use.  But  then  again,  in 
1344,  we  have  a  statute  (which,  by  the  way,  itself  is  written 
in  French)  complaining  that  the  French  king  is  trying  to 
destroy  the  English  language.  They  were  getting  very  jeal- 
ous of  anything  French;  the  Normans  had  already  been  ab- 
sorbed; modern  England  was  beginning  to  appear. 

(1344)  And  now  comes  a  liberal  statute,  repealing  those 
restrictions  on  wool,  and  allowing  it  to  be  exported;  and 
another  statute  that  "the  Sea  be  open  to  all  manner  of  mer- 
chants." Now  this  is  the  origin  of  the  great  English  notion 
of  freedom  to  trade  with  foreign  parts ;  and  was  principally 
relied  upon  three  centuries  later  in  the  great  case  of  mo- 
nopoly (7  State  Trials)  brought  against  the  East  India  Com- 
pany. And  England  has  assumed  dominion  of  the  sea  ever 
since;  "the  boundaries  of  Great  Britain  are  the  high-water 
mark  upon  every  other  country." 

(1348)  This  year  was  the  plague  of  the  Black  Death,  and 
the  following  year  is  the  first  Statute  of  Laborers  discussed 
in  an  earlier  chapter  and  elaborately  amended  in  the  follow- 
ing year.  In  1350  also  we  find  the  Statute  of  Cloths,  pro- 
viding again  for  free  trade  in  victuals,  cloths,  and  any  other 
manner  of  merchandise  in  all  the  towns  and  ports  of  Eng- 


LAWS  OF  THE  STAPLE  99 

land,  and  punishing  forestalling  of  any  merchandise  with 
two  years*  imprisonment  and  forfeiture  of  the  goods,  one- 
half  to  go  to  the  informer.  Two  years  later  the  forestalling 
and  engrossing  of  Gascony  wines  is  forbidden  and  even  the 
selling  of  them  at  an  advanced  price,  and  this  offence  is  made 
capital ! — and  the  next  year  we  have  the  most  elaborate  of  the 
Statutes  of  the  Staple  re-established.  This  ordinance  (1353) 
provides  for  a  staple  of  wools,  leather,  wool  fells,  and  lead  in 
various  towns  in  England,  Wales,  and  Ireland.  The  safety 
of  merchant  strangers  is  provided  for,  and  it  is  again  made 
a  felony  for  the  king's  subjects  to  export  wool;  and  more 
important  still,  all  merchants  coming  to  the  staple  and  mat- 
ters therein  "shall  be  ruled  by  the  Law-Merchant  and  not 
by  the  common  Law  of  the  Land  nor  by  Usage  of  Cities, 
Boroughs  or  other  Towns,"  and  any  plaintiff  is  given  the 
option  whether  he  will  sue  his  action  or  quarrel  before  the 
justices  of  the  staple  by  the  law  thereof,  or  in  the  common- 
law  court.  Merchandise  may  be  sold  in  gross  or  by  parcels, 
but  may  not  be  forestalled;  and  the  goods  of  strangers  suf- 
fering shipwreck  shall  be  restored  to  their  owners  on  pay- 
ment of  salvage.  Houses  in  staple  towns  must  be  let  at  a 
reasonable  rate,  and  conspiracies  or  combinations  against 
the  law  of  the  staple  made  criminal.  Again  our  ancestors 
showed  themselves  more  civilized  than  we,  this  time  in  their 
Custom-house  proceedings;  for  Article  26  of  this  statute 
provides  that  "  whereas  a  Duty  is  payable  of  three  pence  in 
the  pound  by  all  merchant  strangers  coming  into  the  king- 
dom, they  may  show  their  letters  or  invoices  to  prove  the 
value  of  their  goods,  and  if  they  have  no  letters,  they  shall 
be  believed  by  their  oath  .  .  .  and  now  of  late  we  under- 
stand by  the  Complaint  of  the  said  Merchants  that  although 
they  have  Letters  or  have  made  oath,  nevertheless  after  the 
Oath  made  the  bailiffs  of  the  customs  do  unseal  their  Bar- 
rels, Fardels,  and  Bales  for  which  they  have  taken  their 
oath.  We,  not  willing  that  Strangers  that  come  into  our 
Realm  be  in  such  Manner  grieved,  establish  that  when  the 


100  POPULAR  LAW-MAKING 

Letters  or  the  oath  be  taken  their  Goods  shall  be  delivered 
to  them  without  delay  and  the  bailiffs  meddle  no  more  of  the 
same  Goods  upon  Pain  of  Imprisonment  and  pay  the  Party 
grieved  quatreple  Damages."  As  is  well  known,  it  is  the 
United  States  custom  to  insist  upon  the  oath  of  the  importer, 
and  notwithstanding  that,  rummage  open  his  trunks.  Or  are 
we  to  infer  that  people  were  more  truthful  in  those  days  ? 

(1354)  The  export  of  iron  is  forbidden,  and  the  justices 
given  power  to  punish  them  that  sell  iron  at  too  dear  a  price, 
but  it  does  not  appear  how  the  prices  are  to  be  determined; 
and  the  Statute  of  the  Staple  is  again  re-enacted  and  the 
provision  made  that  duty  shall  be  paid  only  upon  those 
goods  which  are  actually  sold  in  England  and  the  merchant 
may  re-export  the  balance — the  first  precedent  of  our  laws  of 
importing  under  bond.  It  is  notable  that  this  year  the  Stat- 
ute of  Laborers  is  extended  to  the  city  of  London. 

(1357)  The  Ordinance  of  Herrings  is  a  most  interesting 
example  of  early  intelligence  in  dealing  with  a  modern  abuse. 
It  provides  "that  no  herring  shall  be  bought  or  sold  in  the 
Sea,  till  the  Fishers  be  come  into  the  Haven  with  their  Her- 
ring, and  that  the  Cable  of  the  Ship  be  drawn  to  the  Land." 
That  thereupon  they  may  sell  freely,  but  only  between  sun- 
rise and  sunset.  "The  Hundred  of  Herring  shall  be  ... 
six  score,  and  the  Last  by  ten  Thousand  and  all  Merchants 
must  sell  the  Thousand  of  Herring  after  the  Rate  of  the 
Price  of  the  Last,  and  the  people  of  Yarmouth  shall  sell  the 
last  [that  is,  the  ten  thousand  red  herring],  bought  for  forty 
shillings  for  half  a  mark  of  gain  and  not  above;  and  so  the 
people  of  London  for  one  mark  of  gain";  and  the  destruction 
of  fish  is  prevented,  but  all  caught  must  be  sold.  It  is  well 
known  that  the  custom  was  to  destroy  all  the  fish  brought 
into  Billingsgate  market  above  a  certain  quantity,  which  led 
Ruskin  to  cry  out  furiously  that  the  real  prices  of  the  world 
were  regulated  by  Rascals,  while  the  fools  are  bleating  their 
folly  of  Supply  and  Demand.  One  may  guess  to-day  that 
most  of  the  proceedings  in  the  ports  of  Boston,  New  York, 


EARLY  FOOD  LAWS  FORBIDDING  TRUSTS,  ETC.   101 

or  Gloucester  would  be  highly  criminal  under  this  ancient 
law.  So,  in  the  Statute  of  Dogger  (this  ancient  word  mean- 
ing the  ships  that  carry  fish  for  salting  to  Blakeney,  Cromer, 
and  other  ports  in  the  east  of  England),  the  price  of  dogger 
fish  is  settled  at  the  beginning  of  the  day  and  must  be  sold 
at  such  price  "openly,  and  not  by  covin,  or  privily,"  nor  can 
fish  be  bought  for  resale,  but  must  be  sold  within  the  bounds 
of  the  market.  To-day  there  is  not  a  quart  of  milk  that 
goes  into  Boston  that  is  not  forestalled,  nor  possibly  a  fish 
that  is  not  sold  at  sea  or  even  before  its  capture;  and  the 
number  of  middlemen  is  many — when,  indeed,  they  all  are 
not  consolidated  into  a  trust.  The  destruction,  directly  or 
by  cold  storage,  of  milk,  fish,  eggs,  or  other  food  in  order 
solely  to  maintain  the  price  should  to-day  be  a  misdemeanor; 
and  these  early  doctrines  of  forestalling  and  restraining  trade 
should  be  to-day  more  intelligently  applied  by  our  judges — 
or  by  the  legislatures,  if  our  lawyers  have  forgotten  them 
— for  they  all  are  "highly  criminal  at  the  common  law." 

In  the  reign  of  Edward  III  appears  one  of  many  cruel 
ordinances  for  Ireland.  Although  the  Roman  Church  was 
then,  of  course,  universal,  the  statute  is  addressed  to  "the 
Archbishops,  Bishops,  Abbots,  Priors  and  our  Officers  both 
great  and  small  of  our  land  of  Ireland,"  and  recites  that 
"through  default  of  good  government  and  the  neglect  and 
carelessness  of  the  royal  officers  there  [this  is  probably  true 
enough]  our  land  of  Ireland  and  the  Clergy  and  People 
thereof  have  been  manifoldly  disturbed  and  grieved;  and 
the  Marches  of  said  Land  situate  near  the  Enemy,  laid  waste 
by  Hostile  Invasions,  the  Marches  being  slain  and  plundered 
and  their  Dwellings  horribly  burnt."  The  Marchers  were, 
of  course,  mainly  of  English  descent;  and  one  notes  that 
the  Irish  are  frankly  termed  the  Enemy.  As  a  method  of 
meeting  this  evil,  the  Saxon  intelligence  of  the  day  could 
find  no  better  remedy  than  to  lay  it  to  "marriages  and  divers 
other  Ties  and  the  nursing  of  Infant  Children  among  the 
English  and  the  Irish,  and  Forewarnings  and  Espyals  made 


102  POPULAR  LAW-MAKING 

on  both  Sides  by  the  Occasions  aforesaid,"  and  it  therefore 
forbids  such  marriages  to  be  contracted  between  English 
and  Irish,  "and  other  private  Ties  and  nursing  of  Infant 
Children."  The  statute  notes  that  these  dissensions  do  not 
occur  only  between  the  English  and  those  of  Irish  blood,  but 
as  well  between  the  English  of  birth  and  the  English  of 
descent  living  in  Ireland;  a  condition  which  has,  indeed, 
continued  till  to-day,  Parnell  and  a  host  of  famous  Irishmen 
being  of  pure  English  descent. 

In  1360  the  exportation  of  corn  is  forbidden.  We  now, 
therefore,  have  that  principle  applied  to  wool,  iron,  and 
bread-stuffs — corn,  of  course,  meaning  all  kinds  of  grain. 
There  is  another  statute  requiring  Parliament  to  be  held 
once  a  year;  and,  more  interesting,  that  pleas  should  be 
made  in  the  English  language,  for  "the  French  tongue  is 
much  unknown  in  said  Realm  of  England,"  but  the  judg- 
ments are  to  be  enrolled  in  Latin.  In  1363  another  statute 
concerning  diet  and  apparel  fixes  the  price  of  poultry,  a 
young  capon  three  pence,  an  old  one  four  pence,  a  hen  two 
pence,  and  a  pullet  one  penny  "for  the  great  Dearth  that  is 
in  many  Places."  Department  stores  are  anticipated  by  a 
clause  complaining  that  the  merchants  called  grocers  do 
engross  all  manner  of  merchandise  "by  Covin  and  Ordinance 
made  betwixt  them,  called  the  Fraternity  and  Gild  of  Mer- 
chants," and  anticipates  the  prejudice  against  the  modern  de- 
partment store  by  ordaining  that  merchants  shall  deal  in 
only  one  sort  of  merchandise;  and  furthermore  handicrafts- 
men are  allowed  to  "use  only  one  Mystery,"  that  is,  trade — 
which  also  anticipates  a  principle  dear  to  modern  trades- 
unions.  The  statute  then  regulates  the  diet  and  apparel  of 
servants.  They  may  eat  once  a  day  of  flesh  or  fish,  but  the 
rest  of  their  diet  must  be  milk  or  vegetarian.  Their  cloth- 
ing may  not  exceed  two  marks  in  value.  People  of  handi- 
craft and  yeomen,  however,  are  allowed  to  wear  clothing 
worth  forty  shillings,  but  not  silk,  silver,  nor  precious  stones. 
Squires  and  gentlemen  of  a  landed  estate  less  than  one  hun- 


FREEDOM   OF  TRADE  RESTORED  103 

dred  pounds  a  year  may  wear  clothing  to  the  value  of  four 
marks  and  a  half,  but  not  gold  nor  silver,  precious  stones 
nor  fur.  Merchants  having  goods  to  the  value  of  five  hun- 
dred pounds  may  dress  like  esquires  and  gentlemen  to  a 
value  of  six  marks.  Clerks,  that  is  to  say,  persons  having 
degrees  from  colleges,  may  dress  like  knights  of  the  same 
income  and  may  wear  fur  in  winter  and  lawn  in  summer, 
and  clothiers  make  clothes  accordingly  and  drapers  and 
tailors  charge  proportionately.  This  most  interesting  effort  to 
interfere  with  private  life  stops  short  of  regulating  the  use  of 
wine  or  beer;  and  tobacco  had  not  yet  been  discovered. 
It  is  all  the  more  interesting  to  note  that  it  was  found  so  in- 
tolerable that  it  was  repealed  the  following  year;  and  little 
effort  since  then  has  been  made  to  regulate  the  diet  or  dress 
or  expenditure  of  Englishmen;  it  was  declared  in  memor- 
able language  that  "which  was  ordained  at  the  last  Parlia- 
ment, of  Living  and  of  Apparel,  and  that  no  English  Mer- 
chant should  use  but  one  Merchandise"  be  repealed,  and 
"It  is  ordained,  That  all  People  shall  be  as  free  as  they  were 
before  the  said  Ordinance,"  and  "all  Merchants,  as  well 
Aliens  as  Denizens,  may  sell  and  buy  all  Manner  of  Mer- 
chandises, and  freely  carry  them  out  of  the  Realm  .  .  .  sav- 
ing the  Victuallers  of  Fish  that  fish  for  Herring  and  other 
Fish,  and  they  that  bring  Fish  within  the  Realm."  Thus, 
after  trying  the  opposite,  we  find  triumphantly  established  in 
the  middle  of  the  fourteenth  century  the  great  English  prin- 
ciple of  freedom  of  life  and  trade.  The  legislation  of  this 
great  reign  ends  with  the  prohibition  of  practising  lawyers 
from  sitting  in  Parliament  and  an  ordinance  that  women 
might  not  practise  law  or  "sue  in  court  by  way  of  Maintenance 
or  Reward,  especially  Alice  Perrers,"  Alice  Perrers  or  Pierce 
having  become  unpopular  as  the  mistress  of  the  elderly  king. 
Our  courts  have  usually  held  that  there  is  no  common-law 
principle  forbidding  women  to  practise  law,  but  from  this 
ancient  statute  it  would  appear  that  such  decisions  are 
erroneous. 


104  POPULAR  LAW-MAKING 

(1381)  In  5  Richard  II  is  a  law  absolutely  forbidding  the 
sale  of  sweet  wines  at  retail.  This  law,  with  the  testimony 
of  Shakespeare,  goes  to  show  that  England  liked  their  wines 
dry  (sack),  but  the  act  is  repealed  the  following  year,  only 
that  sweet  wines  must  be  sold  at  the  same  price  as  the  wines 
of  the  Rhine  and  Gascony;  and  in  the  same  year,  more  in- 
telligent than  we,  is  a  statute  permitting  merchants  to  ship 
goods  in  foreign  ships  when  no  English  ships  are  to  be  had. 
In  1383,  according  to  Spence,  the  barons  protested  that 
they  would  never  suffer  the  kingdom  to  be  governed  by  the 
Roman  law,  and  the  judges  prohibited  it  from  being  any 
longer  cited  in  the  common-law  tribunals.  The  rest  of  the 
statutes  of  Richard  II  are  taken  up  with  the  important  stat- 
utes concerning  riots  and  forcible  entries,  and  regulating 
labor,  as  set  forth  in  the  last  chapter. 

The  troublesome  reign  of  Richard  II  closes  with  an  in- 
teresting attempt  to  make  its  legislation  permanent,  as  has 
sometimes  been  attempted  in  our  State  constitutions.  The 
last  section  of  the  last  law  of  King  Richard  declares  "That 
the  King  by  the  Assent  of  the  said  Lords  and  Knights  [note 
it  does  not  say  by  consent  of  the  Commons],  so  assigned  by 
the  said  Authority  of  Parliament,  will  and  hath  ordained 
that  ...  to  repeal  or  to  attempt  the  repeal  of  any  of  the 
said  Statutes  is  declared  to  be  high  treason,"  and  the  man  so 
doing  shall  have  execution  as  a  traitor.  Notwithstanding, 
in  the  following  year  the  first  act  of  Henry  IV  repeals  the 
whole  Parliament  of  the  21st  of  Richard  II  and  all  their 
statutes;  that  it  be  " wholly  reversed,  revoked,  voided,  un- 
done, repealed,  and  adnulled  for  ever" — so  we  with  the 
States  in  rebellion,  and  so  Charles  II  with  the  acts  of  Crom- 
well. 

(1400)  Under  Henry  IV  is  the  first  secular  law  against 
heresy,  making  it  a  capital  offence.  Upon  conviction  by  the 
ordinary  the  heretic  is  to  be  delivered  to  the  secular  arm, 
i.  e.,  burnt.  Note  that  the  trial,  however,  still  remains  with 
the  ordinary,  i.  e.,  the  clerical  court.  Under  Henry  IV  also 


LAWS  AGAINST  SCOTCH,   WELSH,   AND   IRISH     105 

we  find  a  statute  banishing  all  Welshmen  and  forbidding 
them  to  buy  land  or  become  freemen  in  England;  and  under 
Henry  VI  the  same  law  is  applied  to  Irishmen,  and  in  the 
next  reign  to  Scotchmen  as  well.  The  Irishmen  complained 
of,  however,  were  only  those  attending  the  University  of 
Oxford.  In  1402  we  find  Parliament  asserting  its  right  to 
ratify  treaties  and  to  be  consulted  on  wars;  matters  not 
without  interest  to  President  Roosevelt's  Congress,  and  in 
1407  we  find  definite  recognition  of  the  principle  that  money 
bills  must  originate  in  the  lower  house. 

For  the  purpose  of  his  Chicago  speech,  it  is  a  pity  that 
Mr.  Bryan's  attention  was  never  called  to  the  Statute  of  the 
8th  of  Henry  VI,  which  forbids  merchants  from  compelling 
payment  in  gold  and  from  refusing  silver,  "which  Gold  they 
do  carry  out  of  the  Realm  into  other  strange  Countries." 
An  enlightened  civic  spirit  is  shown  in  the  Statute  of  1433, 
which  prohibits  any  person  dwelling  at  the  Stews  in  South- 
wark  from  serving  on  juries  in  Surrey,  whereby  "many 
Murderers  and  notorious  Thieves  have  been  saved,  great 
Murders  and  Robberies  concealed  and  not  punished."  And 
the  statute  sweepingly  declares  everybody  inhabiting  that 
part  of  Southwark  to  be  thieves,  common  women,  and  other 
misdoers.  Fortunately,  this  was  before  the  time  that  John 
Harvard  took  up  his  residence  there. 

In  1430  was  the  first  statute  imposing  a  property  qualifi- 
cation upon  voters. 

In  1452  is  a  curious  statute  reciting  that  "Whereas  in 
all  Parts  of  this  Realm  divers  People  of  great  Power,  moved 
with  unsatiable  Covetousness  .  .  .  have  sought  and  found 
new  Inventions,  and  them  continually  do  execute,  to  the 
Danger,  Trouble  and  great  abusing  of  all  Ladies,  Gentle- 
women, and  having  any  Substance  .  .  .  perceiving  their 
great  Weakness  and  Simplicity,  will  take  them  by  Force, 
or  otherwise  come  to  them  seeming  to  be  their  great  Friends 
.  .  .  and  so  by  great  Dissimulation  ...  get  them  into 
their  Possession;  also  they  will  many  Times  compell  them 


106  POPULAR  LAW-MAKING 

to  be  married  by  them,  contrary  to  their  own  liking."  A 
writ  of  chancery  is  given  to  persons  so  constrained  of  their 
liberty  to  summon  the  person  complained  of,  and  if  he  make 
default  be  outlawed — an  early  example  of  "government  by 
injunction"  applied  to  other  than  labor  disputes!  I  know 
no  example  of  an  American  statute  to  this  effect ;  presumably 
our  women  are  lacking  in  "weakness  and  simplicity." 

In  1463  is  another  curious  sumptuary  law  prescribing 
with  great  care  the  apparel  of  knights,  bachelors,  gentle- 
men and  their  wives,  making  it  criminal  for  tailors  to  make 
cloths  not  according  to  this  fashion,  and  for  shoemakers  to 
make  boots  or  shoes  having  pikes  more  than  two  inches 
long.  No  draper  shall  sell  or  women  wear  hose  to  the  value 
of  more  than  fourteen  pence,  nor  kerchiefs  worth  more  than 
ten  shillings,  but  scholars  of  the  universities  "may  wear 
such  Array  as  they  may,"  nor  does  the  ordinance  extend  to 
judges  or  soldiers.  The  provision  against  long  pikes  to 
shoes  appears  to  be  considered  of  importance,  for  it  was  re- 
enacted  in  1464.  I  have  searched  in  vain  for  a  statute 
relating  to  hatpins.  Again  in  1482  there  is  another  long 
statute  concerning  apparel  which  seems  to  have  been  con- 
sidered under  the  reign  of  Edward  IV  quite  the  most  im- 
portant thing  in  life.  A  more  manly  clause  of  the  statute  is 
concerned  with  the  benefits  of  archery  to  England,  reciting 
that  "in  the  Time  of  the  victorious  Reign  ...  the  King's 
Subjects  have  virtuously  occupied  and  used  shooting  with 
their  Bows,  whereby  and  under  the  Protection  of  Almighty 
God,  victorious  acts  have  been  done  in  Defence  of  this 
Realm,"  and  the  price  of  long  bows  of  yew  is  limited  to  three 
and  four  pence.  The  statutes  now  begin  to  be  in  English. 

In  1488  the  Isle  of  Wight  is  to  be  repeopled  with  English 
people  for  "defence  of  the  King's  auncien  ennemyes  of  the 
realme  of  Fraunce." 

In  1491  all  Scots  are  to  depart  the  realm  within  forty  days 
upon  pain  of  forfeiture  of  all  their  goods;  it  is  not  recorded 
that  any  remained  in  England.  In  1491  Henry  VII  levied 


THE  FIRST  STATUTE  OF  LIMITATIONS          107 

an  amazingly  heavy  tax  upon  personal  property,  that  is  to 
say,  two  fifteenths  and  tenths  upon  all  "movable  goodes 
cattales  and  othre  thinges  usuelly  to  suche  xvmes  and  xmes 
contributory,"  with  the  exception  of  Cambridge  and  a  few 
other  favored  towns.  In  1495  the  famous  Oklahoma  statute 
is  anticipated  by  a  law  regulating  abuses  in  the  stuffing  of 
feather  beds. 

In  1503  a  statute  recites  that  the  "Longe  Bowes  hathe  ben 
moche  used  in  this  his  Realme,  wherby  Honour  &  Victorie 
hathe  ben  goten  .  .  .  and  moche  more  drede  amonge  all 
Cristen  Princes  by  reasone  of  the  same,  whiche  shotyng  is 
now  greatly  dekayed."  So  this  mediaeval  Kipling  laments 
that  they  now  delight  in  cross-bows  to  the  great  hurt  and  en- 
feebling of  the  Realm  and  to  the  comfort  of  outward  enemies, 
wherefore  cross-bows  are  forbidden  except  to  the  lords,  on 
penalty  of  forfeiture  of  the  bow. 

(1509)  The  reign  of  Henry  VIII  was  one  of  personal 
government;  and  in  those  days  personal  government  re- 
sulted in  a  small  output  of  law-making  by  Parliament.  In- 
deed, after  1523,  under  Cardinal  Wolsey,  Parliament  was 
not  summoned  for  seven  years.  In  1539  the  attempt  to  do 
without  popular  legislation  is  shown  in  the  act  already  re- 
ferred to,  giving  royal  proclamations  of  the  king  and  council 
the  force  of  law,  a  definite  attempt  at  personal  government 
which  might  have  resulted  in  the  establishment  of  an  admin- 
istrative law  fashioned  by  the  executive,  had  it  not  been  for 
the  sturdy  opposition  of  the  people  under  weaker  reigns. 
But  under  the  reign  of  Henry  VIII  also  the  great  right  of 
free  speech  in  Parliament  was  established;  and  in  1514  the 
king  manumitted  two  villeins  with  the  significant  words 
"Whereas  God  created  all  men  free,"  vulgarly  supposed  to 
be  original  with  our  Declaration  of  Independence. 

The  important  principle  of  a  limitation  for  prosecutions  by 
the  government  for  penal  offences  dates  from  the  first  year 
of  Henry  VIII,  the  period  being  put,  as  it  still  is,  at  three 
years;  and  it  is  expressed  to  be  for  better  peace  and  justice 


108  POPULAR  LAW-MAKING 

and  to  avoid  the  taking  up  of  old  charges  after  the  evidence 
has  disappeared. 

In  1515  is  another  act  of  apparel  providing,  among  other 
things,  that  the  king  only  shall  wear  cloth-of-gold  or  purple 
color,  or  black  fur,  and  that  no  man  under  the  degree  of  a 
knight  may  wear  "pinched  Shirts."  In  this  reign  also  comes 
the  famous  Statute  of  Wills,  permitting  the  disposal  of  land 
by  devise,  the  Statute  of  Uses  and  other  matters  primarily 
of  interest  to  the  lawyer;  the  first  Bankruptcy  Act  and  the 
first  legislation  recognizing  the  duty  of  the  secular  law  to 
support  the  poor,  perfected  only  under  Queen  Elizabeth; 
but  in  the  latter  part  of  his  reign  there  is  little  law-making 
that  need  concern  us.  The  Statutes  of  Apparel  continue, 
and  the  statutes  fixing  the  price  of  wine,  which,  indeed, 
seems  to  have  been  the  last  subject  so  regulated.  There  is 
the  " Bloody  Statute"  against  heresy,  and  the  first  act  against 
witchcraft,  Tindale's  translation  of  the  Bible  is  prohibited, 
and  women  and  laborers  forbidden  to  read  the  New  Testa- 
ment. There  is  the  first  act  for  the  preservation  of  the  river 
Thames,  and  also  for  the  cleaning  of  the  river  at  Canterbury; 
and  the  first  game  law  protecting  wild-fowl,  and  a  law  "for 
the  breeding  of  horses"  to  be  over  fifteen  hands.  The  king 
is  allowed  to  make  bishops  and  dissolve  monasteries;  phy- 
sicians are  required  to  be  licensed.  The  regrating  of  wools 
and  fish  is  again  forbidden,  and  finally  there  is  an  act  for 
the  true  making  of  Pynnes;  that  is  to  say,  they  are  to  be 
double  headed  and  the  heads  "soudered  fast  to  the  Shanke." 

We  are  now  approaching  the  end  of  our  task,  for  the 
legislation  after  James  I,  with  the  exception  of  a  few  great 
acts,  such  as  the  Statute  of  Frauds  and  the  Habeas  Corpus 
Act,  hardly  concerns  us  as  not  being  part  of  our  inherited 
common  law.  The  reigns  of  Elizabeth  and  James  are  to 
us  principally  notable  for  the  increase  of  the  feeling  against 
monopolies,  ending  in  the  great  Statute  of  James  I.  While 
we  still  find  restrictions  upon  trade  in  market  towns  or 
in  the  city  of  London,  they  always  appear  as  local  restric- 


LAWS  AGAINST  MIDDLEMEN  100 

tions  and  are  usually  soon  repealed.  The  prejudice  against 
regrating,  that  is  to  say,  middlemen,  continues,  as  is  shown 
in  a  Statute  of  Edward  VI,  providing  that  no  one  shall  buy 
butter  or  cheese  unless  to  sell  the  same  only  by  retail  in  open 
shop.  That  is  to  say,  there  must  be  no  middleman  between 
the  producer  and  the  retailer,  and  a  definition  of  the  word 
"retail"  is  given.  In  1552,  the  7th  of  Edward  VI  is  a  cele- 
brated statute  called  the  Assize  of  Fuel,  applied  to  the  city 
of  London,  notable  because  it  forbids  middlemen  and  pro- 
vides that  no  one  shall  buy  wood  or  coal  except  such  as  will 
burn  or  consume  the  same,  "Forasmuche  as  by  the  gredye 
appetite  and  coveteousnes  of  divers  persons,  Fuell  Coles  and 
Woodd  runethe  many  times  throughe  foure  or  fyve  severall 
handes  or  moe  before  it  comethe  to  thandes  of  them  that 
for  their  necessite  doo  burne  .  .  .  the  same" — under  penalty 
of  treble  value. 

In  1551  is  the  last  elaborate  act  against  regrators,  forestall- 
ers,  and  engrossers,  made  perpetual  by  13  Elizabeth,  and  only 
repealed  in  1772.  It  recognizes  all  previous  laws  against 
them,  but  recites  that  they  have  not  had  good  effect,  and  there- 
fore in  the  first  section  gives  a  precise  definition.  Fore- 
stalling— the  buying  of  victuals  or  other  merchandise  on 
their  way  to  a  market  or  port,  or  contracting  to  buy  the  same 
before  they  arrive  at  such  market  or  city,  or  making  any 
motion  for  the  enhancing  of  the  price  thereof,  or  to  prevent 
the  supply,  that  is,  to  induce  any  person  coming  to  the  mar- 
ket, etc.,  to  stay  away.  Regrating  is  narrowed  to  victuals, 
alive  or  dead,  and  to  the  reselling  them  at  the  fair  or  market 
where  they  were  bought  or  within  four  miles  thereof;  and 
engrossing  is  given  a  definition  very  similar  to  our  "buying 
of  futures."  That  is  to  say,  it  is  the  buying  or  contracting 
to  buy  any  corn  growing  in  the  fields  or  any  other  victuals 
within  the  Realm  of  England  with  intent  to  sell  the  same 
again.  The  penalty  for  all  such  offences  is  two  months' 
imprisonment  and  forfeiture  of  the  value  of  the  goods,  but 
for  a  third  offence  the  person  suffers  forfeiture  and  may  be 


110  POPULAR  LAW-MAKING 

imprisoned.  There  is  an  important  recognition  of  modern 
political  economy  made  in  the  proviso  that  persons  may 
engross  corn,  etc.,  when  it  sells  at  or  below  a  certain  price, 
not,  however,  forestalling  it. 

In  1554  is  a  statute  for  the  relief  of  weavers,  prohibiting 
"the  engrossing  of  looms,"  thus  anticipating  one  of  the 
principal  doctrines  of  Lassalle.  In  the  same  year,  1st  of 
Philip  and  Mary,  is  a  statute  prohibiting  countrymen  from 
retailing  goods  in  cities,  boroughs,  or  market  towns,  but  sell- 
ing by  wholesale  is  allowed,  and  they  may  sell  if  free  of  a 
corporation;  and  so  cloth  may  be  retailed  by  the  maker, 
and  the  statute  only  applies  to  cloth  and  grocery  wares,  not 
apparently  to  food. 

(1562)  From  the  reign  of  Elizabeth  dates  the  great  Poor 
Law,  enacted  and  re-enacted  in  1562,  1572,  and  finally  in 
1601,  recognizing  fully  the  duty  of  the  parishes  to  support 
their  poor,  but  providing  a  system  of  organized  charity  and 
even  licensing  beggars  in  towns  too  poor  to  support  all  their 
paupers.  Side  by  side  with  this,  however,  went  the  severe 
statutes  against  idlers  and  vagabonds  recited  in  the  last 
chapter.  The  first  game  laws  date  from  about  this  period, 
prohibiting  the  snaring  of  birds  and  establishing  close  sea- 
sons, and  also  in  1584  we  find  the  first  forestry  law  for  the 
preservation  of  timber  in  the  southern  counties.  There  is  no 
provision  for  seeding,  but  the  use  in  the  iron  works  of  wood 
for  fuel  is  carefully  regulated,  and  in  order  to  preserve  the  for- 
ests in  Sussex,  Surrey,  and  Kent,  it  is  provided  that  no  new 
iron  mills,  furnaces,  etc.,  shall  be  erected  in  those  counties, 
showing  the  relative  value  that  our  forefathers  placed  upon 
these  matters.  The  first  incorporation  of  a  trading  company 
seems  also  to  date  from  the  time  of  Elizabeth.  That  is  to  say, 
the  Muscovy  Company  was  chartered  in  1564,  and  the  Mer- 
chant Adventurers  for  the  discovery  of  new  trades  in  1566. 
In  this  same  year  is  the  celebrated  act  of  Speaker  Onslow,  in 
telling  Elizabeth  that  she  is  subject  to  the  common  law;  from 
henceforward  we  are  in  modern  times.  In  1534  Henry  VIII 


THE   EARLIEST  TRADING  CORPORATIONS       111 

declared  himself  supreme  head  of  the  Church  of  England; 
five  years  later  with  the  dissolution  of  monasteries  came  the 
"Bloody  Statute,"  whereby  he  attempted  to  vindicate  his 
orthodoxy.  The  act  was  entitled  "  An  Act  abolishing  diversity 
of  opinion  on  certain  articles  concerning  the  Christian  Re- 
ligion," and  insisted  upon  the  sacraments,  celibacy,  masses, 
and  confessions,  but  in  1548  the  marriage  of  priests  was 
made  lawful,  and  in  1566  the  pope  forbade  attendance 
at  the  English  Church.  Thus,  Roman  law  was  expelled 
in  the  first  two  or  three  centuries  after  the  Conquest,  the 
Roman  Church  in  the  sixteenth  century,  and  it  remained 
for  the  seventeenth  to  struggle  with  the  last  serious  at- 
tempt at  the  Roman  or  Continental  theory  of  personal  gov- 
ernment. 

(1602)  King  James  at  his  accession  asserted  the  divine 
right,  and  his  legislation,  other  than  special  bills  for  the  resto- 
ration of  attainted  persons,  or  the  confirmation  of  titles,  is 
scanty,  his  reign  being  principally  occupied  with  the  conflict 
with  Parliament,  which  he  forbade  from  meddling  with 
affairs  of  state.  In  the  first  year  of  his  reign,  the  Statute  of 
Laborers  of  Elizabeth  was  confirmed,  as  well  as  that  against 
rogues  and  vagabonds;  the  ninth  act  of  his  first  Parliament 
was  "To  restraine  the  inordinate  hauntinge  and  tiplinge  in 
Innes  and  Alehouses,"  and,  indeed,  much  of  his  legislation 
is  aimed  at  what  should  properly  be  called  "sins"  rather 
than  "crimes";  the  next  act  after  this  was  one  to  restrain 
"all  persons  from  Marriage  until  their  former  Wyves  and 
former  Husbandes  be  deade."  And  next  came  a  statute 
against  witchcraft.  In  1603  is  an  act  to  prohibit  people 
from  eating  anything  but  fish  in  Lent,  entitled  "An  Acte  to 
encourage  the  Seamen  of  England  to  take  Fishe,  wherebie 
they  may  encrease  to  furnishe  the  Navie  of  England."  There 
was  an  act  for  the  relief  of  skinners,  and  a  charter  given  by 
Queen  Elizabeth  in  the  twenty-first  year  of  her  reign  to 
the  Eastland  merchants  for  a  monopoly  of  trade  in  those 
countries;  it  would  be  interesting  could  these  early  corpora- 


112  POPULAR  LAW-MAKING 

tion  charters  and  monopoly  grants  be  printed,  for  they  are 
not  usually  found  in  the  statutes  of  the  realm.  In  1605 
stage  players  are  forbidden  from  swearing  on  the  stage. 
In  1606  is  an  elaborate  act  for  the  regulation  of  the  spinning, 
weaving,  dyeing,  and  width  of  woollen  cloth,  and  the  same 
year  is  an  act  for  "repressinge  the  odious  and  loathsome 
synne  of  Drunckennes,"  imposing  a  penalty  or  fine  and  the 
stocks.  In  1609  an  act  of  Edward  IV  is  revived,  forbidding 
the  sale  of  English  horns  unwrought,  that  people  of  strange 
lands  do  come  in  and  carry  the  same  over  the  sea  and  there 
work  them,  one  of  the  latest  statutes  against  the  export  of 
raw  material.  In  the  last  year  of  his  reign  comes  the  great 
Statute  of  Monopolies  noted  in  the  last  chapter,  and  an  act 
extending  the  benefit  of  clergy  to  women  convicted  of  small 
felonies,  for  which  they  had  previously  suffered  death,  and 
another  act  for  the  repression  of  drunkenness.  And  the 
last  statute  we  shall  note,  like  the  first,  is  concerned  with 
regrating  and  engrossing ;  that  is  to  say,  it  re-enacts  the  Stat- 
ute of  Edward  VI  prohibiting  the  engrossing  of  butter  and 
cheese,  and  prohibiting  middlemen.  Thus  restraint  of  trade 
and  freedom  of  labor  begin  and  end  as  the  most  usual  sub- 
jects of  English  popular  law-making. 

A  few  words  upon  Cromwell's  legislation  may  be  of  interest; 
for  though  it  was  all  repealed  and  left  no  vestige  in  the  laws 
of  England,  it  had  some  effect  upon  the  legislation  of  Massa- 
chusetts, Rhode  Island,  and  Connecticut.  Under  the  Com- 
monwealth there  was  but  one  legislative  chamber,  and  over 
that  the  protector  exercised  far  more  control  than  had  been 
ventured  by  the  maddest  Stuart  or  Tudor.  One  would  sup- 
pose that  a  period  which  represented  the  supremacy  of  the 
common  people  would  be  marked  by  a  mass  of  popular 
legislation.  Quite  the  contrary  is  the  fact.  In  the  first 
place,  the  Instrument  of  Government,  prepared  by  the  so- 
called  Barebones  Parliament,  was  supposed  to  be  a  sort  of 
constitution;  as  a  symbol  of  the  change  from  absolute  per- 


CROMWELL'S  LEGISLATION  113 

sonal  government  to  constitutional  government  under  this 
Instrument,  Cromwell  exchanged  his  military  sword  for  the 
civil  common  sword  carried  by  General  Lambert,  who  was 
at  the  head  of  the  deputation  praying  the  Lord  General  to 
accept  the  office  of  protector.  It  vested  the  supreme  power 
in  him,  acting  with  the  advice  of  the  Council,  with  whose 
consent  alone  he  could  make  war,  and  that  Council  was  to 
choose  future  protectors.  The  legislative  power  resided  in 
a  single  chamber,  upon  which  he  had  a  veto.  There  was 
an  ordinary  property  qualification  for  voting,  and  religious 
liberty  was  guaranteed,  except  as  to  the  papists.  Only  one 
Parliament,  as  a  matter  of  fact,  assembled  under  this  In- 
strument of  Government,  and  the  very  first  legislative  func- 
tion it  endeavored  to  exercise  seemed  to  offend  Cromwell, 
who  promptly  dissolved  it  with  a  file  of  soldiers.  That  was 
the  end  of  constitutional  government  under  the  protector. 
The  laws  of  the  Rump  Parliament,  and  the  Barebones 
Parliament,  are  entirely  omitted  from  the  official  Statutes 
of  England,  and  only  to  be  found  in  a  rather  rare  vol- 
ume. They  mostly  concern  military  affairs.  The  real  re- 
forms of  government,  like  the  abolition  of  the  Star  Chamber 
and  feudal  tenures,  had  in  fact  been  carried  out  under 
Charles  I. 

A  further  word  should  be  given  to  the  origin  of  the  busi- 
ness corporation,  an  almost  accidental  event,  which  has 
affected  the  world  of  trade  and  affairs  more  than  the  inven- 
tion of  printing,  of  the  bill  of  exchange,  and  the  Law  Mer- 
chant combined.  It  would  have  been  perfectly  possible  for 
the  world  to  get  on  and  do  business  without  the  modern 
corporation — without  the  invention  of  a  fictitious  person 
clothed  with  the  enormously  powerful  attributes  of  immor- 
tality and  irresponsibility.  That  is  to  say,  men  can  act  to- 
gether or  in  partnership,  but  they  are  mortal,  and  at  their 
death  their  personal  powers  end.  The  corporation  may  be 
immortal,  and  its  powers,  as  well  as  its  acquisitions,  increase 
forever.  Men  are  liable  with  all  their  estates  for  their  con- 


114  POPULAR  LAW-MAKING 

tracts  and  obligations.  Men  in  corporations  are  only  liable 
to  the  amount  of  their  aliquot  share  of  stock,  or  often  not 
at  all.  Corporations  may  dissolve,  and  be  reborn,  divide, 
and  reunite,  swallow  up  other  corporations  or  often  other 
persons.  Individuals  cannot  do  so  except  by  the  easily 
broken  bond  of  co-partnership. 

Trading  corporations  for  profit  were  practically  unknown 
to  the  Romans,  or  even  to  Continental  countries — scholastic 
precedents  and  the  Venetian  commendam  to  the  contrary 
notwithstanding.  They  developed  in  England  first  out  of 
the  guild  or  out  of  the  monastery;  but  the  religious  corpora- 
tion, although  regarded  with  great  jealousy  in  the  Statutes 
against  Mortmain,  which  show  that  from  the  earliest  times 
our  ancestors  feared  the  attribute  of  immortality  that  char- 
acterizes the  corporation,  have  never  had  the  principle  of 
limited,  or  no,  personal  liability.  That,  indeed,  is  said  to 
have  been  invented  by  the  State  of  Connecticut  (see  below, 
chapter  10).  They  were,  however,  often  clothed  with  monop- 
oly. In  1643  we  find  the  Fellowship  of  Merchant  Adven- 
turers of  England,  a  business  corporation,  with  power  to 
levy  money  on  the  members,  and  exclusive  powers  to  trade 
in  its  own  products,  which  seem  to  have  been  clothing  and 
woollen  manufactures.  We  have  already  mentioned  the 
earlier  charter  to  the  Eastland  merchants.  Mr.  James 
Bryce  has  pointed  out  to  me  that  the  objection  of  monopoly 
would  not  have  been  felt  so  much  to  apply  to  a  corpora- 
tion chartered  only  for  purposes  of  trade  out  of  England. 
It  would  seem,  therefore,  that  the  invention  and  growth  of 
the  secular  corporation  was  an  accident  of  the  legislation  of 
Queen  Elizabeth's  time;  and  arose  rather  from  this  desire 
to  get  a  monopoly,  than  from  any  conscious  copying  of  the 
trade  guilds,  still  less  the  religious  corporations  of  earlier 
dates;  for  the  trade  guilds  were  nothing  but  a  more  or  less 
voluntary  association  of  men  bound  together  in  a  very  in- 
definite bond,  hardly  more  of  a  permanent  effective  body 
than  any  changing  group  of  men,  such  as  a  political  party  is, 


CORPORATIONS  INVENTED  TO  GAIN  MONOPOLY    115 

from  year  to  year;  the  only  bond  between  them  being  that 
they  happen  at  some  particular  time  to  exercise  a  certain 
claim  at  a  certain  place;  and  even  the  trade  guilds,  as  we 
know,  had  somewhat  the  course  of  a  modern  corporation. 
They  became  overgrown,  aristocratic,  swollen  in  fortune,  and 
monopolistic  in  tendency.  To  some  extent  in  the  English 
cities  and  towns,  and  still  more  in  France,  they  became 
tyrannous.  And  in  the  previous  reign  of  Henry  VIII  all 
religious  corporations  had  been  dissolved. 

Not  much,  perhaps,  remained  for  Cromwell's  Parliament 
to  do.  The  abuses  of  law-making,  of  the  Star  Chamber, 
and  other  non-common-law  courts,  of  personal  government, 
had  been  swept  away  under  Charles  I.  In  1644  the  Book  of 
Common  Prayer  was  abolished.  In  1646  the  bishops  were 
abolished,  in  1648  the  king  and  the  House  of  Peers,  and  in 
1649  the  king  was  beheaded.  Cromwell's  Parliament  was 
more  interested  in  the  raising  of  money  and  the  dividing  up 
royal  lands  than  in  constructive  legislation.  They  did  find 
time  to  forbid  the  planting  of  tobacco  in  England,  and  to 
pass  an  act  furthering  the  religion  of  Jesus  Christ  in  New 
England;  also  a  society  for  the  foundation  of  the  gospel  in 
New  England,  with  power  to  raise  money  or  make  collec- 
tions for  that  purpose,  provided  always,  they  did  not  carry 
any  gold,  silver,  plate,  or  money  outside  of  England.  An  act 
claiming  that  "the  Indians  are  renouncing  their  heathen 
sorceries  and  betaking  themselves  to  English  schools  and 
universities,"  possibly  refers  to  one  Indian  graduate  of  Har- 
vard, Caleb  Cheeshahteaumuck,  of  the  class  of  1665.  There 
are  statutes  concerning  the  impressing  of  seamen;  a  bank- 
ruptcy act,  a  statute  authorizing  secular  marriage  without 
a  priest  or  church  ceremony,  and  the  act  for  preferring 
veterans  in  the  Spanish  War  in  civil  service,  a  statute  which 
gives  a  respectable  antiquity  to  our  laws  making  a  privi- 
leged class  of  veterans  or  the  descendants  of  veterans  of  the 
Civil  and  Spanish  Wars.  Under  Cromwell  they  could  exer- 
cise any  trade  without  apprenticeship;  a  recent  South  Caro- 


116  POPULAR  LAW-MAKING 

linian  statute  providing  that  Confederate  veterans  could  ex- 
ercise any  trade  without  paying  the  usual  license  tax  was 
held  unconstitutional  by  the  Supreme  Court  of  South  Caro- 
lina itself. 


VI 
AMERICAN  LEGISLATION  IN  GENERAL 

Before  approaching  the  actual  field  of  American  legisla- 
tion, it  may  be  wise  to  make  a  few  general  statements  con- 
cerning it.  It  was  some  fifty  years  after  the  adoption  of 
the  Federal  Constitution  before  it  began  in  great  bulk,  but  to- 
day we  find  in  the  States  alone  forty-six  legislative  bodies, 
and  two  of  Territories,  besides  the  Federal  Congress  and  the 
limited  legislatures  of  our  insular  possessions.  Nearly  all 
of  these  turn  out  laws  every  year;  even  when  the  legisla- 
tures meet  biennially,  they  frequently  have  an  annual  ses- 
sion. Only  in  one  or  two  Southern  States  have  recent 
constitutions  restricted  them  to  once  in  four  years.  It  would 
be  a  fair  estimate  that  they  average  five  hundred  statutes 
a  year,  which  would  make,  roughly  speaking,  twenty-five 
thousand  annual  laws.  It  has  been  well  doubted  by  stu- 
dents of  modern  democracy,  by  Lecky  and  Carlyle,  if  this 
immense  mass  of  legislation  is  a  benefit  at  all.  Carlyle, 
indeed,  is  recorded  to  have  taken  Emerson  down  to  the 
House  of  Commons  and  showed  him  that  legislative  body 
in  full  function,  only  taking  him  away  when  he  was  sufficiently 
exhausted,  with  the  query  whether  Emerson,  though  a  Unita- 
rian, did  not  now  believe  in  a  personal  devil.  Administra- 
tive law-making  for  the  machinery  of  government  there 
must  always  be,  but  for  the  rest,  if  we  rely  on  the  common 
law  and  its  natural  development  alone,  our  condition  will 
be  far  less  hopeless  than  most  of  us  might  imagine.  Indeed, 
as  we  shall  so  often  find,  it  is  the  very  ease  and  frequency  of 
legislation  that  has  caused  our  courts  and  law-makers  to 

117 


118  POPULAR  LAW-MAKING 

forego  the  well-tried  doctrines  of  the  common  law.  Many  of 
our  statutes  but  re-enact  it;  when  they  go  beyond  it,  it  is 
frequently  to  blunder.  Moreover,  it  is  a  commonplace  that 
no  law  is  successful  that  does  not  fairly  express  the  thought 
and  customs,  the  conditions,  of  the  mass  of  the  people.  Pro- 
fessor Jenks  of  Oxford  applies  to  all  other  legislation  the 
term  "fancy  legislation,"  or,  as  we  might  say,  freak  legisla- 
tion— the  caprices  and  desires  of  the  present  legislature  or 
their  constituents,  carried  immediately  into  law;  and  we  may 
say  at  the  outset  that  such  legislation  has  rarely  proved  wise, 
and  hardly  ever  effective.  It  is  needless  to  state  that  many 
modern  statutes — like  prohibition  laws,  for  instance — are 
passed  for  that  very  reason.  Yet  whatever  the  fact  may 
have  been  in  the  past,  there  is  no  doubt  that  for  the  future, 
legislation  by  the  people,  constructive  law-making  at  the 
popular  behest,  is  the  great  new  fact  of  Anglo-American 
civilization.  There  has  just  been  brought  out  an  immense 
index,  under  the  auspices  of  the  British  Government,  called 
"The  Legislation  of  the  Empire,  being  a  Survey  of  the 
Legislative  Enactments  of  the  British  Dominions,  from 
1897  to  1907."  This  work  fills  four  huge  volumes,  and  gives 
but  the  briefest  possible  index-headings  of  the  statutes  of  the 
British  Empire  for  that  period.  Our  excellent  "Index  of 
Legislation,"  published  by  the  New  York  State  Library, 
contains  about  six  hundred  pages,  and  even  this  is  hardly 
more  than  an  index,  as  the  title  suggests. 

Now,  this  tremendous  increase  in  legislative  output,  most 
notable  in  the  States  of  the  United  States,  did  not  begin  with 
us  at  once.  For  some  forty  or  fifty  years  after  the  Revolu- 
tion our  State  legislatures  made  as  little  constructive  legisla- 
tion as  did  the  Parliament  of  George  III.  It  was  with  the 
end  of  the  first  quarter  of  the  nineteenth  century  that  the  great 
increase  began.  It  seems  to  have  taken  democratic  legisla- 
tures some  fifty  years  to  become  conscious  that  they  had 
this  new  unlimited  power,  and  not  only  that  they  possessed 
it  but  were  expected  to  exercise  it;  the  power  of  making 


EARLY   INCREASE  OF  STATE   LEGISLATION      119 

absolutely  new  laws,  statutes  which  did  not  exist  before  as 
law,  either  by  the  common  law  or  by  the  custom  of  the 
people.  It  is  true,  our  ancestors  had  some  taste  of  radical 
legislation  during  the  Revolution,  and  the  checks  of  the  State 
constitutions  were  adopted  for  that  reason;  but  subject 
only  to  this  limitation,  it  was  the  first  modern  experiment  in 
popular  legislation.  The  great  wave  of  radical  law-making 
that  began  with  the  moral  movements — the  prohibition  move- 
ment, the  anti-slavery  movement,  and  the  women's  rights 
movement — of  the  second  quarter  of  the  nineteenth  cen- 
tury, lasted  down  until  the  Civil  War.  After  that  there  was 
a  conservative  reaction,  followed  by  a  new  radical  wave  in 
reconstruction  times,  which  ended  with  another  conservative 
reaction  at  the  time  of  the  first  election  of  President  Cleve- 
land. Since  then,  new  moral  or  social  movements,  mainly 
those  concerned  with  the  desire  to  benefit  labor  and  repress 
the  trusts,  with  the  desire  to  protect  women  and  children, 
seem  to  have  brought  up  a  new  radical  wave,  the  progress 
of  which  has  hardly  ended  yet.  Before  the  Civil  War,  the 
women's  rights  movement  and  the  anti-slavery  movement 
always  worked  together.  They  were  in  great  part  composed 
of  the  same  persons.  In  fact,  the  historical  origin  of  the 
women's  suffrage  movement  was  a  large  abolition  meeting 
held  in  England,  but  attended  by  many  women  delegates 
from  America,  where  they  excluded  a  leading  American 
woman  abolitionist  and  would  only  allow  her  husband  to 
take  her  seat  in  her  place.  We  shall,  of  course,  consider 
this  precise  question  later,  and  pause  now  merely  to  note  the 
fact  that  with  the  anti-slavery  movement,  ending  with  the 
adoption  of  the  war  amendments  and  the  women's  suffrage 
movement,  ceasing  to  progress  soon  after,  there  came  the 
period  of  conservative  reaction,  or,  at  least,  of  quiescence, 
which  lasted  down  to  the  recent  labor  and  social  movements 
that  have  caused  our  increasing  mass  of  constructive  legis- 
lation in  the  last  few  years.  It  is  true  that  some  of  the  far 
Western  Territories  adopted  women's  suffrage  soon  after 


120  POPULAR  LAW-MAKING 

being  made  States,  or  at  the  time  they  were  admitted;  but 
no  other  State,  even  of  those  surrounding  them,  has  followed 
their  example,  though  the  people  have  repeatedly  voted  on 
the  point.  Whatever  progress  the  cause  may  have  made  in 
England,  or  in  the  larger  cities  of  the  East,  I  think  that  no 
unprejudiced  observer  would  say  that  it  looks  so  near  to 
accomplishment  as  it  did  in  the  twenty  years  preceding  the 
Civil  War.  Then,  also,  there  was  during  the  same  decades 
a  great  increase  in  personal  property;  that  is  to  say,  in  cor- 
porate stocks  and  bonds,  the  kind  of  property  most  easily 
attacked  by  legislation;  but  the  very  possession  of  such 
securities  by  large  numbers  of  the  people  tended  to  make 
them  more  conservative  in  ordinary  property  matters.  It  is 
in  the  times  when  you  have  but  farmers  on  the  one  side,  as 
in  the  Shay  Rebellion  in  Massachusetts  after  the  Revolu- 
tion, or  when  the  proletariat  on  the  one  side  is  opposed  to 
the  bourgeoisie  on  the  other,  as  in  certain  Continental  coun- 
tries, that  you  find  radical  legislation.  We  were  fortunate  in 
that  a  large  number  of  our  citizens  were  thus  arrayed  on 
both  sides  of  the  question.  Property  rights,  of  course,  have 
been  granted  to  women  most  completely  throughout  the 
Union,  but  in  twenty  years  they  have  made  little  progress 
toward  the  vote. 

Blackstone  says  that  democracy  is  peculiarly  fitted  to 
the  making  of  laws,  and  calls  attention  to  the  importance  of 
legislation,  with  the  regret  that  there  should  be  no  other 
state  of  life,  arts,  or  science,  in  which  no  preliminary  instruc- 
tion is  looked  upon  as  requisite;  but  by  "democracy" 
Blackstone  really  meant  representative  government,  which 
still  acts  quite  differently  from  the  referendum  and  the  initia- 
tive. Democracies,  he  says,  are  usually  the  best  calculated 
to  direct  the  end  of  a  law.  But  in  no  sense,  says  Professor 
Jenks,  was  the  British  Parliament  the  result  of  a  democracy; 
while  our  State  legislatures  during  the  Revolution  were, 
indeed,  democratic,  and  practically  omnipotent,  and  for  that 
very  reason  were  promptly  curbed  by  the  State  constitutions, 


THE  MODERN  STATE  CONSTITUTIONS  121 

which  were  adopted  even  before  the  Federal.  And  of  late 
the  distrust  of  our  legislatures  is  shown  by  the  most  exag- 
gerated list  of  restrictions  we  find  placed  upon  them  in  the 
newer  constitutions  of  the  Southern  and  Western  States. 
Another  thing  Blackstone  oddly  says,  is  that  in  legislation 
by  the  people  they  will  show  great  caution  in  making  new 
laws  that  may  interfere  with  their  rights  and  liberties.  Pre- 
cisely the  contrary  is  experienced.  Nobody  is  so  willing  to 
interfere  with  the  rights  or  liberties  of  the  people  as  the  peo- 
ple themselves,  or  their  supposed  representatives  in  the  legis- 
lature; and  a  body  or  faction  of  the  people  is  far  more  ready 
and  reckless  to  impose  its  will  upon  the  others  than  have 
been  the  most  masterful  English  monarchs. 

The  recklessness  of  legislatures  has  two  or  three  most  evil 
consequences.  They  pass  foolish  or  unconstitutional  laws,  re- 
lying on  the  governor  to  veto  them,  or  the  courts  to  declare 
them  void — which  has  the  effect  of  shirking  their  responsi- 
bility and  imposing  unjust  and  obnoxious  duties  on  the  other 
branches  of  government,  to  which  they  do  not  fairly  belong; 
increases  the  growing  disrespect  for  all  law,  and  deterior- 
ates the  moral  and  intellectual  fibre  of  the  legislature  itself. 
Finally,  also,  it  provokes  that  hypertrophic  modern  State 
constitution  of  the  South  and  West,  which  tries  to  bind  down 
future  legislatures  in  infinite  particulars,  thereby  again  dimin- 
ishing their  importance  and  responsibility,  making  it  more 
difficult  to  get  able  men  to  serve  in  them,  and,  by  the  frequent 
necessary  amendment  of  State  constitutions,  resulting  in  a 
continual  referendum,  which  nearly  does  away  with  repre- 
sentative government  itself. 

Moreover,  when  a  law  is  unconstitutional  it  should  ever  be 
only  because  it  violates  some  great  natural  right  of  human- 
ity, personal  liberty,  property,  or  the  right  to  common  law. 
When  constitutions  go  into  details  which  are  not  substan- 
tially connected  with  these  cardinal  rights,  they  bring  them- 
selves into  contempt,  and  justify  the  growing  prejudice  of  our 
labor  leaders  against  them.  The  people  should  believe,  as  I 


122  POPULAR  LAW-MAKING 

think  they  do  believe  under  the  Federal  Constitution  and  un- 
der the  older  ones  of  the  States,  that  when  a  law  is  declared 
wo  law  by  a  high  court  for  being  counter  to  the  higher  will  of 
the  people  as  expressed  in  their  permanent  constitution,  it  is 
not  on  a  technicality,  but  because  some  great  liberty  right 
is  infringed  by  it.  Yet  it  is  a  curious  thing  that  whereas  our 
people  only  got  the  power  to  legislate  by  democratic  assem- 
blies freely  and  completely  from  the  year  1776,  in  hardly 
more  than  a  hundred  years  after  their  conscious  possession 
of  that  power  we  find  a  respectably  strong  popular  movement 
attempting  to  reverse  it,  or,  at  least,  to  limit  its  field.  Most 
of  our  advocates  of  direct  legislation  by  the  people  assume 
that  a  great  mass  of  law-making  would  result  in  practice; 
probably  the  contrary  is  true;  the  referendum  would  destroy 
more  than  the  initiative  would  create.  They  would  go  back 
to  a  condition  of  things  which,  in  theory  at  least,  existed  in 
the  England  of  the  early  Saxon  times;  although,  of  course, 
in  those  days  only  the  freemen,  and  no  women,  had  the  law- 
making  vote.  Anyhow,  it  is  curious  that  that  representative 
government  upon  which  we  have  been  priding  ourselves  as 
the  one  great  Anglo-Saxon  political  invention  should  be  pre- 
cisely the  thing  that  we  are  now  urged  to  give  up.  In  the 
Federalist  there  is  much  discussion  as  to  whether  it  is  possi- 
ble to  have  so  big  a  democracy  as  the  United  States,  and  the 
answer  made  by  Hamilton  was,  "Yes,  because  we  shall  have 
representative  government."  But  detailed  discussion  of  the 
initiative  we  must  leave  for  a  later  chapter. 

Perhaps  we  begin  to  detect  the  prejudice  in  the  general 
mind,  which  is  notable  in  the  works  of  a  few  earlier  theorists, 
to  prefer  statute  law  to  what  is  known  as  judge-made  law, 
on  that  ground  alone.  The  writer  is  not  of  the  school  that 
admits  there  is  such  a  thing  as  judge-made  law,  but  believes 
the  phrase  to  be  a  misnomer,  at  least  in  ninety-nine  cases  out 
of  a  hundred.  The  whole  theory  of  the  English  law  is  that  it 
exists  in  and  by  the  people  and  is  known  of  them  before  it 
is  announced  by  a  judge,  and  although  the  extreme  of  this 


THE  TRUE  VALUE  OF  PRECEDENT     123 

theory  be  somewhat  metaphysical,  it  is  certainly  true  that 
a  judge  is  a  very  bad  judge  who  does  not  decide  a  point  of 
law  apparently  new  or  doubtful  according  to  the  entire 
body  of  English-American  precedent,  experience,  rather  than 
by  his  own  way  of  looking  at  things.  If  judges  really  made 
new  law,  particularly  if  they  made  it  consciously,  it  would 
be  more  than  "aristocratic" — it  would  be  simply  tyrannical, 
and,  of  course,  be  unconstitutional  as  well  as  being  an  inter- 
ference with  the  legislative  branch  of  government.  But  it  is 
doubtless  this  theory,  that  it  is  the  statute  law  that  is  the 
democratic  kind,  which  has  given  form  and  body  to  the  vast 
mass  of  statutes  we  are  here  to  consider.  Certain  of  our 
legislators  seem  to  be  horrified  when  a  court  applies  a  pre- 
cedent a  hundred  years  old,  still  more  when  it  is  a  thousand 
years  old,  although  to  the  jurist,  in  most  cases  at  least,  if 
never  since  questioned  and  never  grown  obsolete,  it  is  en- 
titled to  all  the  more  respect  for  that  reason.  Both  the  labor 
interests  and  the  "special  interests"  resent  excessively  the 
recent  tendency  of  intelligent  judges  to  look  at  precedent 
and  history.  Mr.  Debs  will  tell  you  that  such  matters  are 
aristocratic  and  reactionary;  Mr.  Rockefeller,  or  his  lawyer, 
that  they  are  both  visionary  and  obsolete.  Yet  a  statute 
may  only  represent  the  sudden  will  of  a  small  body  of  medio- 
cre intelligence  on  a  new  subject  (or  an  old  one)  which  they 
have  never  studied.  It  is  true  that  if  they  make  a  mistake 
they  can  amend  it  to-morrow;  but  so,  also,  may  be  amended 
the  decisions  of  the  court. 


VII 

AMERICAN  LEGISLATION  ON  PROPERTY 
RIGHTS 

When  we  come  to  the  vast  field  of  legislation  in  the  United 
States,  comprising  the  law-making  of  forty-six  States,  two 
Territories,  the  National  Congress,  and  the  Federal  District, 
it  is  difficult  to  decide  how  to  divide  the  subject  so  as  to  make 
it  manageable.  The  division  made  by  State  codes  and  re- 
visions, and  the  United  States  Revised  Statutes,  hardly  suits 
our  purpose,  for  it  is  made  rather  for  lawyers  than  sociolo- 
gists or  students  in  comparative  legislation.  The  division 
made  by  the  valuable  "Year  Book  of  Legislation,"  published 
by  the  New  York  State  Library,  comprises  some  twenty 
subjects:  Constitutional  Law;  Organic  Law;  Citizenship 
and  Civil  Rights;  Elections;  Criminal  Law;  Civil  Law; 
Property  and  Contracts;  Torts;  Family;  Corporations; 
Combinations  and  Monopolies;  Procedure;  Finance;  Pub- 
lic Order;  Health  and  Safety;  Land  and  Waters;  Trans- 
portation; Commerce  and  Industry;  Banking;  Insurance; 
Navigation  and  Waterways;  Agriculture;  Game  and  Fish; 
Mines  and  Mining;  Labor;  Charities;  Education;  Military 
Matters;  and  Local  Government.  This  division,  however 
convenient  in  practice,  crosscuts  the  various  fields  of  legisla- 
tion as  divided  in  any  logical  manner.  The  same  criticism 
may  be  applied  to  a  somewhat  simpler  division  I  have  used 
in  tabulating  State  legislation  for  the  last  twenty  years  into 
thirteen  columns,  the  titles  of  these  being,  roughly  speaking, 
Property  and  Taxation;  Regulation  of  Trades  and  Commercial 
Law;  Personal  Liberty  and  Civil  Rights;  Labor;  Criminal 
Law,  Health  and  Morality;  Government;  Elections  and 

124 


ANARCHISM,    INDIVIDUALISM,   SOCIALISM        125 

Voting;  Courts  and  Procedure;  Militia  and  Military  Law; 
Women,  Children,  Marriage  and  Divorce;  Charities,  Edu- 
cation, Religion  and  Jails;  Agriculture,  Mining  and  Forestry; 
Corporations,  Trusts  and  Interstate  Commerce.  Is  it  not 
possible  to  begin  with  a  broader  and  more  simple  division  ? 

Now,  all  statutes  are  limitations  on  a  state  of  pure  indi- 
vidualism, defining  this  latter  word  to  mean  a  state  of  society 
recognizing  personal  liberty  and  private  property,  and  allowing 
all  possible  freedom  of  action  and  contract  relating  thereto; 
with  a  court  administration  for  the  purpose  of  protecting 
such  liberty  and  enforcing  such  contracts  in  the  courts.  The 
usual  rough  division  of  our  constitutional  rights,  following 
the  phraseology  of  the  Fourteenth  Amendment,  is  that  of 
life,  liberty,  and  property;  but  the  rights  to  life  and  liberty 
obviously  belong  to  the  same  broad  field.  Our  first  division, 
therefore,  may  well  be  that  which  divides  life  and  liberty 
rights  from  property  rights;  although  in  some  cases,  notably 
in  the  earnings  of  labor,  they  would  be  found  to  run  together. 
Liberty  rights  are  multifarious  and  indefinite;  we  may,  there- 
fore, first  take  the  field  of  property  as  presenting,  after  all, 
a  more  simple  subject.  Considering  all  possible  organiza- 
tions of  human  society  from  this  point  of  view,  we  shall  find 
that  all  may  be  expressed,  all  at  least  that  have  hitherto  been 
conceived,  under  the  systems  of  anarchism,  individualism, 
and  socialism,  these  words  expressing  all  possible  states  of 
human  society  when  expressed  in  terms  of  individual  liberty, 
that  is  to  say,  the  free  exercise  of  the  individual  will.  Either 
one  of  these  may  exist  either  with  or  without  the  notion  of 
private  property;  though,  of  course,  one's  action  as  to  prop- 
erty would  be  controlled  under  a  system  of  socialism,  and 
property  itself  would  have  no  legal  protection  under  a  system 
of  anarchism.  Nevertheless,  the  notion  of  property  might 
still  exist  and  be  recognized  by  the  custom  of  mankind  with- 
out any  sanction  or  enforcement  from  the  entire  community, 
i.  e.,  what  people  call  the  state.  When  we  are  speaking  in 
terms  of  property,  we  use  the  word  communism — meaning 


126  POPULAR  LAW-MAKING 

that  state  of  society  where  the  conception  of  property  exists, 
but  the  law  or  custom  will  not  recognize  individualism. 
Communism,  therefore,  usually  implies  ownership  by  the 
entire  community,  while  in  anarchism  there  is  no  property  at 
all.  There  has  been  much  confusion  in  the  use  of  these 
terms  in  the  popular  mind,  and  even  in  ordinary  writing. 
Many  people  have  confounded,  for  instance,  socialism  with 
anarchism  or  nihilism,  when  the  two  things  are  whole  poles 
apart.  In  the  same  manner,  communism  has  been  con- 
founded with  socialism,  although  the  term  should  be  used 
in  entirely  different  connections — communism  when  we  are 
speaking  in  terms  of  property,  socialism  when  we  are  speak- 
ing in  terms  of  individual  liberty.  The  word  individualism 
was  used  by  the  present  writer  in  a  series  of  articles  entitled 
"The  Ethics  of  Democracy,"  beginning  in  1887,  as  the  most 
convenient  term  for  describing  that  state  of  society  where  the 
greatest  possible  individual  liberty  is  conjoined  with  a  strong 
recognition  of  the  right  of  private  property,  substantially  the 
laissez  faire  school  as  it  existed  in  England  in  the  first  half 
of  the  last  century;  "the  distinction  between  communistic 
and  socialistic  laws  being,  that  the  former  are  concerned 
solely  with  the  taking  or  redistribution  of  money  or  prop- 
erty; the  latter  regulate  or  prohibit  men's  mode  of  life,  acts, 
or  contracts,  either  among  themselves  or  as  concerning  the 
state."  1 

Now,  property  is  but  the  creature  of  law;  and  that  is  to 
say,  in  those  of  our  States  which  have  no  common  law,  of 
statute.  Jurists  and  communists  are  alike  agreed  on  this. 
"Property  is  robbery,"  said  Proudhon;  property  is  but  the 
creature  of  law,  all  English  jurists  admit.  It  is,  of  course, 
possible  to  conceive  of  a  social  system  which  recognizes  no 
right  of  property,  or  one  which  makes  all  property  belong  to 
the  community,  or  a  middle  ground  which  admits  the  insti- 
tution, but  holds  that  every  individual  holds  property  sub- 
ject to  the  state's,  that  is,  the  organized  community's,  regula- 
» Scribner's  Magazine,  vol.  XV,  p.  653. 


COMMUNISM  AND  NATIONALISM  127 

•> 
tion  and  control.     A  convenient  term  for  this  state  of  affairs 

to  which,  perhaps,  in  our  statutes,  we  are  approaching,  is 
"allowable  socialism";  private  property  is  recognized,  but 
its  use  is  regulated.  In  England  they  call  it  "gas-and-water 
socialism";  but  this  term,  though  picturesque,  is  not  suffi- 
ciently comprehensive,  relating,  as  it  does,  only  to  munici- 
pal activities.  There  is  a  third  variety,  the  latest  and  per- 
haps the  most  intelligent  of  all,  that  believed  in  by  leading 
modern  German  and  American  socialists,  which  we  will  call 
nationalism — the  nationalization  or  municipalization  of  pro- 
ductive industry — the  science  of  this  doctrine  being  that 
private  property  may  exist  in  all  personal  belongings,  arti- 
cles of  pleasure,  or  domestic  necessity,  but  not  in  lands, 
mines,  works,  or  other  instrumentalities  used  for  the  further 
production  of  wealth. 

Whatever  the  future  may  bring,  we  must  start  with  the 
institution  of  private  property  recognized  to  its  fullest  ex- 
tent. It  is  expressly  guaranteed  in  our  Federal  Constitu- 
tion, as  for  the  matter  of  that  it  was  also  in  Magna  Charta,  as 
clearly  as  the  right  to  liberty,  and  usually  in  the  very  same 
clause.  Not  only  that,  but  when  we  adopted  our  first  State 
constitutions,  from  1776  to  1788,  and  the  Federal  Constitu- 
tion in  1789,  every  one  of  them  made  express  guarantee  of 
this  right.  One  or  two,  following  the  lead  of  Massachusetts 
and  Virginia,  recognized  equality  also,  or,  at  least,  equality 
by  birth  and  before  the  law;  but  without  exception  property 
was  expressly  recognized  as  one  of  two  leading  constitu- 
tional rights,  and  even  in  some  States,  like  Virginia,  it  was 
termed  a  natural  right.  The  same  thing  is  true  of  the  Massa- 
chusetts Bill  of  Rights  and  in  the  Federal  Fifth  Amendment, 
though  it  is  significant  that  the  Declaration  of  Independence 
omits  the  word  property,  and  only  mentions  among  unalien- 
able  rights,  life,  liberty,  and  the  pursuit  of  happiness — which 
some  courts  have  held  to  include  private  property.1  Never- 

1  Justice  Brewer,  in  the  Yale  Law  Review,  for  June,  1891.  He  holds  that 
under  "the  pursuit  of  happiness"  comes  the  acquisition,  possession,  and 


128  POPULAR  LAW-MAKING 

theless,  under  our  constitutions  to-day,  the  right  is  not  only 
doubly,  but  even  triply,  guaranteed;  that  is  to  say,  by  all 
State  constitutions  against  State  action;  by  the  Federal  Con- 
stitution against  national  action;  and  finally,  by  the  Federal 
government  in  the  Fourteenth  Amendment  as  against  State 
action  also.  This  is  the  reason  why,  in  any  case  affecting 
a  cardinal  liberty  or  property  right,  a  litigant  may  carry 
his  case  not  only  through  the  State  courts,  which  have  sole 
jurisdiction  of  ordinary  business  and  domestic  matters,  but 
to  the  courts  of  the  United  States  as  well. 

When  we  come  to  legislation  on  the  subject,  or  to  modern 
State  constitutions,  there  is  hardly  a  change  in  this  particu- 
lar. Naturally,  we  find  no  new  legislation  confirming  the 
right  of  property  abstractly,  or  restating  that  that  institution 
is  part  of  our  civilization.  There  is  but  one  significant  ex- 
ception to  this  statement.  While  most  of  the  States  in  their 
constitutions  declare  that  men  have  a  natural  right  to  ac- 
quire, possess,  and  protect  property,  and  Kentucky  and 
Arkansas  go  to  the  length  of  saying  that  the  right  of  property 
is  "before  and  higher  than  any  constitutional  sanction" — 
which  latter  statement  is  a  legal  hyperbole — Oklahoma  in 
its  recent  constitution,  North  Carolina,  and  Missouri  state 
only  that  men  have  a  natural  right  to  the  enjoyment  of  the 
fruits  of  their  own  labor;  on  the  other  hand  there  are  recent 
intimations  coming  from  Federal  sources  that  individualism  or 
private  property  rights,  at  least,  and  not  anarchism  or  social- 
ism, are  part  of  our  constitutional  system.  Before  1907  a 
Texas  district  judge  refused  to  naturalize  an  immigrant  on 
the  ground  that  he  was  a  socialist  and  that  socialism  was 
inconsistent  with  the  Federal  Constitution ;  and  in  that  year 
Congress  passed  an  act  to  regulate  all  immigration  of  aliens, 
which  excludes,  among  other  classes,  persons  who  believe  in 

enjoyment  of  property,  and  that  they  are  matters  which  even  government 
cannot  forbid  nor  destroy.  That,  except  in  punishment  for  crime,  no  man's 
property  can  be  taken  without  just  compensation,  and  he  closes:  "  Instead 
of  saying  that  all  private  property  is  held  at  the  mercy  of  the  public,  it  is  a 
higher  truth  that  all  rights  of  the  state  in  the  property  of  the  individual  are 
at  the  expense  of  the  people." 


SOCIALISM  UNCONSTITUTIONAL  129 

or  advocate  the  overthrow  by  force  or  violence  of  the  govern- 
ment of  tjie  United  States  or  of  all  government,  or  of  all  forms 
of  law — a  definition  which  would  exclude  anarchists,  but 
not  socialists;  and  in  the  case  of  South  Carolina  v.  United 
States  (199  U.  S.  437),  the  Supreme  Court  of  the  United 
States  gave  serious  consideration  to  the  question  whether 
State  socialism  was  compatible  with  a  republican  form  of 
government.  This  is  all,  so  far  as  I  am  aware,  that  a  cen- 
tury and  a  half  of  legislation  has  -given  us  affirming  the 
abstract  right  of  property,  though  there  are  several  construc- 
tive statutes  and  constitutional  provisions  applied  to  the  gen- 
eral right  to  trade  or  labor,  which  we  shall  consider  when 
we  come  to  that  subject. 

When  a  right  is  expressly  guaranteed  by  the  Constitution, 
we  need  ordinarily  have  no  affirmative  legislation  about  it. 
Liberty  and  property  being  always  guaranteed  by  the  State 
constitutions,  it  has  not  been  necessary  for  the  States  to 
legislate  to  protect  them. 

Our  study  of  this  subject,  therefore,  will  be  confined  to  the 
restrictive  or  limiting  legislation  affecting  private  property  or 
property  rights,  and  of  this  we  shall  find  plenty.  Now  there 
are  four,  and  only  four,  methods  by  which  the  state,  that 
is  to  say,  American  society  as  organized  into  governments, 
interferes  with  the  right  to  property  or  the  enjoyment  and  use 
thereof;  that  is  to  say,  taxation,  which  is,  of  course,  general; 
eminent  domain,  a  peculiarly  American  doctrine;  the  police 
power;  and  the  regulation  of  rates  and  charges.  Some 
authorities  place  the  last  under  the  police  power;  but  it 
does  not  seem  to  me  that  it  historically,  if  logically,  belongs 
there. 

Starting  with  the  simplest  first — eminent  domain,  an  Amer- 
ican doctrine  which,  in  its  simplest  form,  subjects  the  land 
of  any  one  to  the  need  of  the  state  or,  in  cases  authorized  by 
the  Federal  Constitution,  of  the  nation.  It  is  questionable 
whether  it  applies  to  personal  property.  It  is  an  American 
doctrine,  for  in  England  where  the  king  remained  in  theory 
the  feudal  over-lord,  it  was  not  necessary  for  him  or  the 


130  POPULAR  LAW-MAKING 

sovereign  Parliament,  wishing  to  take  or  control  land,  and 
having  no  constitution  protecting  property  rights  against 
such  action,  to  invent  any  new  doctrine;  but  with  us  all  land 
is  allodial.  The  old  charters  of  the  original  States  creating 
tenures  in  free  and  common  socage  are,  of  course,  obsolete. 
Everybody  is  a  freeholder,  and  the  States  are  not,  still  less  the 
Federal  government,  a  feudal  over-lord.  Nevertheless,  the 
property  of  every  one  must  be  subject  to  the  supreme  common 
necessity;  and  the  right  is  absolute  in  the  States,  although 
limited  in  the  national  government  by  the  Federal  Constitution. 
It  is  an  American  constitutional  principle;  and  this  principle 
also  provides,  as  does  Magna  Charta  and  the  early  charters 
of  England  as  to  personal  property  seized  by  royal  purveyors, 
that  full  damages  must  be  paid ;  and  to  this  general  principle 
our  constitutions  have  added  that  the  damages  must  be  paid 
at  the  time  of  the  taking  and  the  amount  be  determined  by 
due  process  of  law;  that  is  to  say,  in  most  cases  by  a  jury. 
Blackstone  says:  "So  great  is  the  regard  of  the  law  for  pri- 
vate property  that  it  will  not  authorize  the  least  violation 
of  it;  no,  not  even  for  the  general  good  of  the  whole  commu- 
nity";1 a  new  road,  for  instance,  cannot  be  made  without 
consent  of  the  owner  of  the  land,  and  the  words  "eminent 
domain"  do  not  appear  in  the  text  of  his  book.  But  though 
we  hold  the  contrary  doctrine,  the  rights  of  the  property 
owner  are  sufficiently  protected  when  the  taking  is  directed 
by  the  State,  or  even  by  a  city  or  town.  The  menace  to 
property  here,  with  the  increasing  bulk  of  legislation,  comes 
in  the  number  of  new  uses,  not  only  directly  for  the  State  or 
for  cities  and  towns,  but  for  public-service  corporations,  or 
often  other  private  corporations,  and  associations  of  persons, 
who  are  permitted  by  legislation  to  take  land  under  eminent 
domain,  or,  what  is  often  worse,  to  acquire  easements  over  it. 
Most  of  the  States  give  damages  for  land  not  actually  taken, 
but  damaged,  though  our  Federal  courts  have  not  held  this 
to  be  necessary  under  the  Fourteenth  Amendment;  but  al- 
though land  can  still,  in  theory,  only  be  taken  for  a  public 

i  Book  I,  p.  139. 


EMINENT  DOMAIN  131 

use,  the  number  of  uses  which  our  legislation  makes  public 
is  being  enormously  increased.  The  usual  national  pur- 
poses are  forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings.  Independent  of  some  express  permission 
in  the  Constitution,  the  Federal  government  has  no  power 
to  take,  or  even  to  own,  land  at  all  within  the  State  limits. 
Therefore,  it  is  questioned  whether  land  may  be  taken  for 
national  parks  or  forest  reservations  except  in  the  Territories, 
where  title  still  remains  with  the  Federal  government.  But 
the  State's  power  of  eminent  domain  is  unlimited,  although  it 
began  only  with  the  towns  or  counties  taking  roads  for  high- 
ways, and  cities  and  towns  appropriating  lands  for  schools 
and  other  public  buildings.  Probably  the  only  serious  addi- 
tion of  a  wholly  public  use  is  covered  by  the  general  expres- 
sion, parks  and  playgrounds;  but  the  analogy  of  the  highway 
led  to  the  taking  of  land  under  eminent  domain  for  railroads, 
when  they  were  first  invented,  then  for  street  railways,  then 
for  telegraph,  telephone,  and  electric-light  lines,  underground 
pipe-lines  or  conduits  of  all  sorts,  and  finally,  for  drains, 
sewerage  districts,  public,  and  often  private  irrigation  pur- 
poses. Most  of  the  more  complex  State  constitutions  define 
at  great  length  to  the  extent  of  some  twenty  or  thirty  para- 
graphs just  what  purposes  shall  be  considered  a  public  use 
under  eminent  domain.  In  the  absence  of  such  definition, 
or  without  such  definition,  the  number  of  such  uses  is  being 
enormously  increased  by  statute.  Thus,  reservoirs,  storage 
basins,  irrigation  canals,  ditches,  flumes,  and  pipes  for  water 
drainage,  or  mining  purposes,  working  mines,  as  dumps, 
hoists,  shafts,  tunnels,  are  made  a  public  use  by  the  consti- 
tutions of  the  arid  States,  Idaho  and  Wyoming.  So  as  to 
water  only  in  Montana,  but  in  Idaho  also  to  any  other  use 
"necessary  for  the  complete  development  of  the  material 
resources  of  the  State  or  the  preservation  of  the  health  of  its 
inhabitants. "  l  And  even  by  private  parties,  land  may  be 

1  These  provisions  are  collated  in  "  Federal  and  State  Constitutions," 
p.  159. 


132  POPULAR  LAW-MAKING 

taken  for  ways  of  necessity  in  many  States,  and  for  drains, 
flumes,  and  aqueducts  by  the  constitutions  of  the  arid  States. 

At  common  law,  of  course,  a  man  or  a  set  of  men,  who 
happen  to  be  neighbors,  would  have  had  no  right  to  take  my 
land  for  a  private  way,  or  for  drainage  or  irrigation  purposes, 
however  beneficial  to  their  land;  still  less  to  take  water  from 
my  stream  across  my  land  to  their  fields.  But  this  precise 
thing  can  be  done  in  an  increasing  number  of  States,  although 
it  has  been  held  unconstitutional  in  the  courts  of  one  or  two 
of  the  far  Western  States,  and  has  even  yet  not  been  decided 
by  the  Supreme  Court  of  the  United  States  as  to  the  powers 
of  the  Federal  government.  Under  the  broad  definition 
given  in  Idaho  and  Wyoming,  you  can  probably  take  land 
to  establish  a  municipal  coal-yard,  or  dispensary,  or  anything 
else  that  the  legislature  might  suppose  to  be  for  the  general 
health  or  benefit  of  the  people.  Yet  a  hotel  company  would 
not,  as  yet,  be  considered  a  public  use,  nor,  probably,  a  private 
recreation  park.  And  land  taken  for  one  use  may  be  sub- 
jected to  other  and  totally  distinct  uses  without  giving  any 
new  right  of  damages,  as  was  decided  in  Massachusetts,  at 
least,  when  land  given  or  taken  for  an  ordinary  city  street 
was  afterward  occupied  by  a  steam  railroad.  A  notable 
limitation  on  the  use  of  streets,  however,  we  find  imposed  by 
the  statutes  of  New  York  and  many  other  States,  which  pro- 
vide that  no  railway  shall  be  placed  therein  without  the  con- 
sent of  a  majority  of  the  property  owners  or  abutters.  There 
is  frequent  legislation  providing  that  the  betterment  taxes 
collected  in  case  of  public  improvement  shall  not  exceed  the 
damages  given  for  the  property  actually  taken.  In  the  last 
two  or  three  years  there  has  been  an  extension  of  the  doctrine, 
authorizing  cities  and  towns  to  take  more  land  than  is  actu- 
ally needed,  for  the  purpose  of  convenience,  or  in  order  to 
get  a  better  bargain,  and  then  sell  the  surplus;  but  such  laws 
may  be  unconstitutional. 

Land  may,  of  course,  be  taken  for  all  municipal  purposes, 
including  public  squares  or  parks,  playgrounds,  reforma- 


WHAT  ARE  PUBLIC  USES  133 

tories  and  penal  institutions,  levees,  ditches,  drains,  and  for 
cemeteries;  and  the  right  is  being  granted  to  private  com- 
panies other  than  those  above  mentioned,  in  Colorado,  to 
tunnel,  transportation,  electric  power,  and  aerial  tramway 
companies;  in  North  Carolina  to  flume  companies;  in  many 
States  for  private  irrigation  districts;  in  the  West  generally 
to  mining  or  quarrying  companies;  in  West  Virginia  and 
other  States  to  electric  power,  light,  or  gas  companies;  while 
in  North  Carolina,  Washington,  and  Wisconsin,  we  find  the 
dangerous  grant  of  this  great  power  to  electric-power  com- 
panies, which  are,  in  Wisconsin  at  least,  expressly  permitted 
to  flood  lands  by  right  of  eminent  domain  in  order  to  form 
ponds  for  power  purposes.  It  is  easy  to  see  that  under  such 
legislation  everybody  holds  his  land  not  only  subject  to  pub- 
lic need,  but  to  the  greed  of  any  designing  neighbor.  Per- 
haps the  most  important  question  of  eminent  domain  is  or 
was  whether  it  authorized  general  schemes  of  internal  im- 
provement made  by  the  State  or  by  a  municipality,  or,  worse 
still,  by  a  private  corporation  chartered  for  the  purpose.  The 
Constitution  of  Michigan,  with  those  of  the  Dakotas  and  Wy- 
oming, provides  that  the  State  cannot  be  interested  in  works 
of  internal  improvement,  nor,  in  North  Dakota  and  Wyoming, 
engage  in  them  except  on  two-thirds  vote  of  the  people;  nor, 
in  Alabama,  may  it  loan  its  credit  in  support  of  such  works; 
nor,  also,  in  Maryland,  Minnesota,  Ohio,  and  Wisconsin, 
create  or  contract  debts  for  them;  nor,  in  Kansas  and  Mich- 
igan again,  be  a  party  to  carrying  on  such  works.  But  the 
Tennessee  Constitution  declares  that  a  well-regulated  system 
of  internal  improvement  should  be  encouraged  by  the  legis- 
lature. So,  in  Virginia,  no  town  or  county  may  become  a 
party  to  any  work  of  internal  improvement  except  roads, 
and  they  are  frequently  forbidden  from  borrowing  money 
for  such  purposes.  There  is,  therefore,  considerable  con- 
stitutional check  to  legislation  in  this  direction.1 

1  See  "Federal  and  State  Constitutions,"  book  III,  sees.  92,  324,  345,  370, 
391,  and  395. 


134  POPULAR  LAW-MAKING 

Taxation,  of  course,  has  from  all  time  been  the  universal 
limitation  upon  property  rights,  though  it  is  important  to  re- 
member that  until  the  present  budget  there  has  not  in  mod- 
ern times  been  an  attempt  at  direct  taxation  of  the  capital 
value  of  land  in  England;  Cobbett  records  many  "aids"  of  a 
few  shillings  per  hide  of  land  in  Anglo-Norman  times.  The 
earliest  taxation  was  the  feudal  aids  imposed  purely  for  de- 
fensive purposes,  for  building  forts  and  bridges;  later  for 
foreign  wars  or  crusades.  We  have  traced  the  origin  of  the 
scutage  tax  as  a  substitute  for  military  service  and  the  two 
great  constitutional  principles  that  all  taxation  must  be  with 
the  common  consent  of  the  realm;  that  is  to  say,  of  Parlia- 
ment, later  of  the  House  of  Commons;  and  must  also  and 
equally  be  for  the  common  benefit.  Theorists  have  argued, 
particularly  with  us,  that  under  the  latter  principle  protective 
tariffs  are  unconstitutional;  but  even  if  it  be  admitted  that 
they  are  not  for  the  benefit  of  the  whole  people,  the  excep- 
tion is  as  old  as  the  rule;  protective  tariff  laws,  and,  earlier 
still,  laws  absolutely  prohibitive  of  importation,  being  plenti- 
ful on  the  English  statute-books  before  and  at  the  time  this 
earliest  of  constitutional  principles  appeared.  There  is  a 
step  beyond  the  protective  tariffs,  however,  which  is  natu- 
rally mentioned  in  this  connection,  and  that  is  the  bounty — 
sums  of  money  paid  to  certain  interests  and  derived  from  the 
general  taxes  fund.  Under  the  Acts  of  Congress  there  has 
been,  I  think,  only  one  instance  of  a  bounty;  that  is  in  the 
case  of  the  Louisiana  sugar-growers.  In  State  legislation  it 
has  been  a  little  more  usual.  Foreign  countries,  notably 
Germany  and  France,  as  to  beet  sugar,  etc.,  have  been  in 
the  habit  of  giving  bounties.  This  precedent  undoubtedly 
suggested  it;  but  these  countries  do  not  enjoy  our  constitu- 
tional principles.  There  has  hardly  been  a  direct  decision 
on  the  constitutionality  of  the  Federal  bounty,  but  as  to 
State  bounties  we  find  several,  with  an  increasing  tendency 
to  hold  void  such  laws.  There  can  be  no  question  that  they 
are  utterly  against  our  whole  constitutional  system.  The 


BOUNTIES  AND    EXEMPTIONS   FROM   TAXATION    135 

Supreme  Court,  when  considering  sugar-bounty  laws,  seems 
to  have  thought  that  it  might  be  sustained  as  a  compensation 
made  for  a  moral  obligation,  the  Louisiana  planters  having 
been  led  into  industries  from  which  the  protection  was  sud- 
denly removed;  of  such  nature  must  be  the  justification,  if 
any,  for  bounties  given  in  times  of  flood,  fire,  or  public 
disaster,  which,  however,  are  really  sustained  only  in  the 
absence  of  objection  and  on  the  principle  lex  non  curat  de 
minimis.  The  most  insidious  form  of  the  bounty,  however, 
is  that  of  exemption  from  taxation,  or,  still  worse,  granting 
subsidies  or  subscribing  to  the  stock  and  bonds  of  public- 
service,  or  even  ordinary  private,  corporations.  Undoubtedly 
the  exception  has  been  established  in  the  case  of  railroads. 
The  granting  of  State,  city,  or  county  aid  to  railroads  has 
existed  almost  from  their  invention,  probably  on  the  analogy 
of  highways;  at  all  events,  it  is  too  late  to  be  constitutionally 
questioned  now.  The  exemption  from  taxation  of  private 
profitable  enterprises,  such  as  mills  or  factories,  is  less  de- 
fensible. Frequently,  however,  they  go  without  question, 
it  being  to  no  one's  particular  interest  to  do  so.  The  usual 
subjects  of  State  bounties  were,  in  1890,  beet-root  sugar, 
binding  twine,  iron  and  iron  pipe,  potato  starch,  and  rope, 
with  tax  exemptions  to  Portland-cement  works.  Ramie 
fibre  continued  a  favorite  subject  of  bounty  for  some  years, 
with  seed  distributions  to  farmers,  which  were  in  some 
States  held  unconstitutional.  In  1896  Utah  gave  a  bounty 
on  canaigre  leather  and  silk  culture.  There  was  an  exemp- 
tion on  salt  plants  in  Michigan,  but  beet  sugar  continued  the 
favorite  beneficiary.  There  has  been  a  reaction  against 
bounty  legislation  of  recent  years.  In  1908,  for  instance, 
New  York  repealed  its  bounty  on  beet  sugar,  and  it  may  be 
hoped,  with  greater  intelligence  of  constitutional  principles, 
that  all  such  legislation  will  be  abandoned. 

Coming  to  matters  of  ordinary  taxation,  of  course  the  first 
thing  to  note  is  its  extraordinary  extent.  In  direct  taxation 
it  is  not  an  unfair  estimate  to  say  that  the  States  and  their 


336  POPULAR  LAW-MAKING 

municipal  organizations  undertake  to  impose  an  annual 
assessment  on  real  and  personal  property  which  would  av- 
erage at  least  two  per  cent,  throughout  the  country;  amount- 
ing to  from  one-third  to  one-half  of  the  income  derived 
therefrom.  In  indirect  taxation,  duties,  and  revenue  taxes, 
a  sum  far  greater  is  taken  from  the  average  household.  One 
might  very  much  wish  that  the  individual  householder  might 
at  least  know  how  large  a  sum  is  thus  taken  from  his  earnings 
annually,  for  it  is  safe  to  say  that  in  no  civilized  country,  not 
even  in  the  France  before  the  Revolution,  was  individual  tax- 
ation anything  like  so  heavy.  Therefore,  we  are  beginning 
to  find  legislation,  even  constitutional  provisions,  carefully 
limiting  the  tax  rate.  The  amount  of  the  State  tax  is  thus 
limited  in  probably  half  the  States,  mostly  Southern  or  West- 
ern, and  nearly  all  of  them  limit  also  the  amount  of  taxation 
to  be  imposed  by  the  counties,  cities,  towns,  school  districts, 
or  for  other  special  purposes.  In  the  North-eastern  States 
such  limitation  is  not  usual,  though  in  Massachusetts  and 
New  York  it  exists  as  to  certain  cities.  It  may  properly  be 
said  of  such  legislation  that  it  does  not  appear  to  be  so  futile 
as  one  might  have  expected.  There  is,  of  course,  a  tendency 
to  raise  the  limit,  involving  frequent  constitutional  amend- 
ment, or,  in  Massachusetts,  for  instance,  where  the  limitation 
is  put  on  only  by  statutes,  by  later  statutes  authorizing  the 
borrowing  outside  of  the  debt  limit;  for  it  should  be  said 
that  such  limitations  do  usually  apply  both  to  the  appropri- 
ations and  to  the  funded  indebtedness  incurred.  Still  I 
have  not  observed  in  the  last  twenty  years  any  repeal  of  such 
laws  or  constitutional  provisions,  but  rather  an  increasing 
number  of  States  adopting  them,  from  which  it  may  be  in- 
ferred that  they  work  satisfactorily.  Nearly  all  the  States 
purport  to  tax  the  capital  value  of  both  real  and  personal 
property,  not,  as  in  England,  rents  or  incomes;  and  they  tax 
"tangibles"  and  also  "intangibles."  That  is  to  say,  they 
undertake  to  tax  stocks  or  bonds  or  mortgage  debts;  the 
evidence  of  property,  as  well  as  the  property  itself;  and 


LIMITATIONS  OF  TAX   RATE  137 

the  debt  as  well  as  the  property  securing  it.  Some  States, 
such  as  Pennsylvania,  impose  a  smaller,  more  nominal,  tax 
upon  stocks  and  bonds  in  the  hands  of  the  owner,  for  the  sake 
of  getting  a  larger  return,  but  in  many  States,  such  as  Massa- 
chusetts, this  legislation  would  be  unconstitutional,  as  not 
proportional  taxation. 

There  is  a  mass  of  legislation  every  year  directed  to  the 
assessing  and  collecting  of  taxes,  tending  more  and  more  to 
become  inquisitorial,  requiring  the  tax  payer  under  oath  to 
furnish  full  schedules  of  his  property,  with  provision  for  an 
arbitrary  assessment  if  he  fails  to  do  so.  One  effect  of  this 
has  been  to  drive  very  wealthy  men  from  Ohio  or  other 
Western  States  to  a  legal  residence  in  the  East,  where  the 
laws  are  more  lenient,  or  their  enforcement  more  lax.  The 
problem  is  a  most  important  one  and  I  see  no  signs  yet  of 
any  solution  in  the  increasing  mass  of  legislation  one  finds 
upon  this  subject  every  year.  It  is  to  be  noted — what  our 
socialist  friends  have  never  seemed  to  observe — that  just  in 
so  far  as  a  man's  earnings  or  income  are  taken  from  him  in 
the  form  of  taxation,  you  are  already  in  a  state  of  socialism. 
That  is  to  say,  to  that  extent  is  his  income  taken  from  him 
and  administered  by  the  state.  This  is  an  observation  most 
unwelcome  to  the  opponents  of  capitalism,  so-called,  who 
resent  the  conclusion  that  if  the  State  and  Federal  govern- 
ments are  already  taking  forty  per  cent,  of  his  income  from 
him,  a  state  of  perfect  socialism  could  do  no  more  than  take 
the  other  sixty  per  cent.  This  whole  problem  of  taxation, 
indeed,  is  evaded  at  present  only  by  the  miserable  solution 
of  fraud;  hardly  any  one,  except  the  non-propertied  classes, 
paying  what  the  law  purports  to  take  from  them;  and  the 
non-propertied  classes  only  pay  it  because  their  taxation, 
being  indirect,  is  paid  for  them  by  others. 

Coming  to  other  forms  of  taxation,  we  may  distinguish 
three:  Income,  succession,  and  license.  Income  taxation 
in  England  dates,  it  is  said,  from  1435;  but  (in  the  shape  of 
tithes)  it  is  far  older.  The  power  of  income  taxation  (except 


138  POPULAR  LAW-MAKING 

upon  earnings  and  profits)  belongs  here  only  to  the  States; 
just  as  the  sole  power  of  imposing  duties  on  imports  is  given 
to  the  Federal  government.  Many  of  the  States  impose  an 
income  tax,  but  I  observe  no  particular  increase  in  that  kind 
of  taxation  in  the  legislation  of  the  last  twenty  years.  A 
man's  income  is  commonly  taxed  with  his  other  property. 
It  is  a  form  of  tax  far  more  evaded  here  than  in  England, 
probably  because  the  English  law  provides  a  machinery  for 
collecting  a  large  part  of  income  taxation  from  the  persons 
from  whom  the  income  is  derived,  as,  for  instance,  from  the 
tenant  who  pays  rent  to  a  landlord;  just  as  with  us  a  cor- 
poration is  made  to  pay  the  tax  on  its  capital  stock  nominally 
due  from  the  individual  owner.  The  only  notable  extension 
of  income  tax  legislation  is  in  the  establishment  of  the  prin- 
ciple of  the  graded  income  tax,  which  is  beginning  to  be 
adopted  in  a  few  States,  as  in  North  and  South  Carolina 
in  1897. 

This  principle  of  graduated  taxation  has,  however,  been 
nearly  universal  in  our  next  and  more  modern  variety — 
the  succession  tax.  The  old  English  precedents  are  the 
"aids"  and  fines  for  alienation.  But  beginning  here  about 
1893,  this  form  of  taxation  has  now  been  adopted  by  nearly 
all  the  States,  the  amount  of  the  tax  being  graded  both  ac- 
cording to  the  relation  of  the  inheritors  to  the  person  from 
whom  the  succession  is  derived,  and  according  to  the  amount 
of  the  inheritance  itself;  the  rate  of  the  tax  thus  varying  all 
the  way  from  an  absolute  exemption,  as  to  the  wife  or  chil- 
dren, to  a  tax  as  high  as  twenty-five  per  cent,  (in  New  York) 
in  the  case  of  large  estates  going  to  remote  relatives.  The 
Federal  inheritance  tax  imposed  at  the  time  of  the  Spanish 
war  was  soon  repealed,  and  this  domain  of  taxation,  with 
the  income  tax,  is  now  almost  universally  employed  by  the 
States.  The  principle  itself  can  hardly  be  carried  much 
farther,  but  it  will  be  necessary  to  have  some  understanding 
or  arrangement  between  the  States,  whereby  double  or  treble 
succession  taxes  are  not  imposed  on  the  same  estate,  as 


INHERITANCE  TAXES  139 

notably  in  the  case  of  the  stock  or  bonds  of  railroads  char- 
tered in  several  States,  all  of  which  may  undertake  to  impose 
full  succession  taxes  upon  such  stock.  It  has  been  held  that 
succession  taxes  may  be  graded  even  in  cases  where  a  State 
constitution  provides  for  proportionate  taxation,  the  tax 
being  an  excise  tax  and  not  a  direct  property  tax;  but  this  is 
not  so  in  respect  to  income  taxes.  We  may  assume  therefore 
that  income  taxes  must  be  equal  in  States  which  have  this 
constitutional  provision,  although  in  one  or  two  of  them 
recent  statutes  have  exempted  a  portion  of  the  income  of 
veterans  of  the  Civil  War.  This  might  be  sustained  as  a 
pension,  pensions  being  for  actual  military  service  constitu- 
tional, and  are  in  the  Southern  States  expressly  permitted  to 
Confederate  soldiers  and  their  families — despite  the  implied 
prohibition  of  the  Fourteenth  Amendment. 

The  last  form  of  taxation,  that  of  an  excise  upon  licenses 
or  trades,  is  most  usual  in  the  South.  An  increasing  number 
of  trades  are  thus  being  taxed  or  regulated.  Sometimes  the 
taxation  is  put  under  the  guise  of  a  fee  for  examination  and 
licensing,  sometimes  plainly  as  an  excise  tax.  Undoubtedly 
such  taxation  is  against  all  the  history  of  our  legislation  de- 
manding complete  freedom  of  labor  and  trade.  Neverthe- 
less, it  has  not  been  held  unconstitutional  by  the  States  ex- 
cept, of  course,  when  touching  a  trade  which  is  interstate 
commerce,  though  the  examination  occasionally  has  been. 
Such  taxation  has  not  yet  become  popular  in  the  North, 
except  definitely  for  the  purpose  of  examination  and  license; 
but  it  is  almost  universal  in  the  South,  many  States  indeed 
providing  by  their  constitution  or  laws  that  all  trades  and 
callings  may  be  thus  taxed.  These  taxes  may  be  arbitrary 
in  amount,  but  are  sometimes  graded  according  to  the 
amount  of  business  done.  Such  legislation  has  been  sustained 
in  so  far  as  it  is  a  tax  or  a  license  imposed  for  protecting 
the  public  health  in  a  reasonable  manner;  thus,  doctors, 
plumbers,  nurses,  dentists,  etc.,  have  been  submitted  to  such 
regulation,  but  in  the  case  of  blacksmiths  its  constitution- 


140  POPULAR  LAW-MAKING 

ality  was  in  one  State  denied,  and  the  law  as  to  barbers  in 
several  States  annulled.  Nevertheless,  it  will  always  be  a 
popular  method  of  raising  money  in  the  poorer  States,  where 
land  already  bears  its  full  burden  and  little  personal  property 
can  be  found. 

Commissions  of  inquiry  on  this  whole  subject  of  taxation 
are  continually  being  appointed — we  have  had  two  in  Massa- 
chusetts in  the  past  ten  years — and  their  recommendations 
nearly  always  prove  unacceptable.  The  probable  scientific 
answer,  that  you  must  only  tax  property  and  not  money  or 
the  evidence  of  property,  and  that  if  direct  taxation  thereby 
becomes  too  burdensome  we  must  reduce  our  rate  of  ex- 
penditure, is  a  conclusion  our  legislators  are  yet  unwilling 
to  accept.  The  taxation  of  corporations  presents  a  different 
problem  and  we  shall  therefore  leave  jt  for  special  consider- 
ation with  that  subject.  The  matter  of  betterment  taxes 
may  be  dismissed  with  a  word,  as  it  is  hardly,  in  theory,  tax- 
ation at  all,  but  rather  using  municipal  agencies  to  collect 
the  cost,  or  part  of  the  cost,  of  a  local  work  or  benefit.  It 
is,  of  course,  closely  connected  with  the  subject  of  eminent 
domain.  That  is  to  say,  only  a  public  use,  or  at  least  a 
general  local  benefit,  can  justify  a  betterment  tax.  There  is 
still  considerable  legislation  on  this  matter,  confined  generally 
to  the  objects  of  securing  a  jury  trial,  or  at  least  a  public 
hearing,  on  the  amount  of  the  assessment,  defining  the  pur- 
poses for  which  it  may  be  imposed,  as,  for  instance,  paving, 
sewers,  water-works  where  public,  and — perhaps  the  most 
contested  case  of  all — that  of  parks  or  pleasure-grounds; 
and  providing  that  the  amount  of  betterment  taxes  imposed 
shall  not  exceed  one-half  the  value  of  the  improvement  of 
the  property,  and  shall  never  exceed  the  amount  paid  as 
damages  when  part  of  the  owner's  land  is  taken. 

By  far  the  greatest  mass  of  legislation  relating  to  property 
is  concerned  with  the  police  power  and  modern  extensions 
thereof.  It  is  also  by  far  the  most  dangerous  to  property 
rights,  and  this  for  several  reasons:  firstly,  it  involves  the 


THE  POLICE   POWER  141 

destruction  of  property  without  any  compensation  whatever, 
not  upon  payment  of  damages,  as  in  the  case  of  eminent 
domain ;  secondly,  on  account  of  the  extraordinary  extension 
by  our  modern  legislation  of  this  power  to  matters  not  hith- 
erto deemed  necessary  for  the  safety,  health,  or  even  the  well- 
being  of  the  public,  vague  as  the  legal  application  of  the  last 
word  is;  thirdly,  and  perhaps  most  important,  because  the 
police  power  is  usually  exercised  without  any  common-law 
guarantees,  without  process  of  law  or  jury  trial,  but  by  the 
arbitrary  ruling  of  some  board,  or  even  single  commissioner, 
and  often,  so  far  as  the  statute  is  concerned,  without  a  jury 
or  even  an  appeal  from  the  commissioner's  ruling  to  any 
court  of  law. 

I  believe  this  to  be  the  most  dangerous  tendency  that  now 
confronts  the  American  people — government  by  commission, 
tenfold  more  dangerous  than  "government  by  injunction." 
Not  only  is  there  no  liberty,  no  appeal  to  common  right  and 
the  courts,  but  all  permanent  "boards"  tend  to  become  nar- 
row and  pedantic  or,  worse,  to  be  controlled  by  the  works 
they  are  created  to  control.1  The  constitutionality  of  such 
boards  is,  of  course,  always  questionable,  but  the  tendency 
to  create  them  is  perhaps  the  most  striking  thing  in  modern 
American  legislation.  Not  only  do  we  find  them  in  enor- 
mously increased  numbers  in  all  the  States,  but  even  a  late 
President  of  the  United  States  seriously  recommended  that 
the  contracts  and  affairs  of  all  corporations  at  least  (and  the 
bulk  of  modern  business  is  done  in  corporate  form)  should 
be  so  submitted  to  the  control  or  dictation,  or  even  the  null- 
ification, of  such  an  administrative  board  or  commission,  and 
this  again  with  no  appeal  to  the  courts.  So  audacious  an 
upsetting  of  all  Anglo-Saxon  ideas  of  the  right  to  law,  it 
may  be  said  without  exaggeration,  has  never  been  attempted 

1  Two  singular  instances  happened  only  the  past  year :  at  comrrion  law 
any  one  may  build  railroads,  and  they  are  certainly  for  the  general  advantage 
whether  profitable  to  the  owners  or  not.  Yet  the  railroad  commissions  of 
New  York  and  Massachusetts  have  recently  in  each  State  prevented  the 
building  of  most  important  lines,  by  responsible  applicants — under  the 
opposition  of  other  railroads. 


142  POPULAR  LAW-MAKING 

in  the  history  of  the  English  people,  not  even  by  the  Stuart 
kings,  who  were  most  of  all  disposed  to  interfere  in  such 
particulars.  Wiser  counsels  deterred  the  administration  from 
insisting  on  this  measure,  but  the  fact  that  it  could  be 
brought  up,  and  that  with  the  approval  of  a  large  portion  of 
the  public,  indicates  how  radical  our  legislation  is  getting  to 
be  in  this  particular. 

It  is  a  commonplace  in  the  law  that  no  court  has  defined, 
or  ever  will  consent  to  define,  the  exact  limits  of  this  police 
power;  suffice  it  to  say  that  in  the  classic  words  of  Chief 
Justice  Shaw  of  Massachusetts,  "it  is  all  that  makes  for  the 
health,  safety,  or  comfort  of  the  people."  As  to  the  health 
and  safety,  there  can  be  little  question;  but  when  it  comes 
to  indefinite  words  like  "comfort"  or  "well-being,"  too  wide 
a  field  is  left  for  the  imagination.  It  has  recently  been  de- 
cided that  the  aesthetic  part  of  life  does  not  necessarily  con- 
cern the  comfort  or  well-being  of  the  people.  That  is  to  say, 
laws  forbidding  the  use  of  land  for  the  erection  of  hideous 
signs,  or  forbidding  the  height  of  buildings  at  an  inartistic 
excess  have  been  declared  not  to  fall  within  the  police  power, 
but  under  eminent  domain.  So  of  statutes  forbidding  the 
taking  of  a  man's  picture,  or  a  woman's  portrait  for  adver- 
tising purposes,  when  not  properly  obtained;  yet  it  may 
be  questioned  if  any  law  is  more  certainly  for  the  comfort  of 
the  persons  concerned  than  such  a  statute.  On  the  other 
hand,  noisy  or  noxious  trades,  mosquito  ponds,  trees  infected 
with  moths,  etc.,  sawdust  in  water,  offensive  smoke,  and,  in 
Vermont,  signs,  were  all  made  nuisances  by  statute  of  one 
State  or  other  in  1905  alone.  The  first  historical  instance, 
perhaps,  of  destruction  of  property  under  the  police  power  was 
the  blowing  up  of  buildings  to  check  a  conflagration,  a  prac- 
tice still  common,  although  its  utility  was  much  questioned 
after  the  Boston  fire,  and  which,  at  common  law  at  least,  gave 
the  owner  no  right  to  compensation;  but  the  more  usual  use 
of  the  police  power  until  very  recent  years  has  been  limited 
to  the  prohibition  of  offensive  trades  in  certain  localities,  and 


LIMITATIONS  OF  THE   POLICE  POWER  143 

the  suppression  of  public  nuisances.  Later,  the  prohibition 
of  the  manufacture  of  intoxicating  or  malt  liquors,  and  the 
regulation  of  tenement  houses  at  the  orders  of  the  Board  of 
Health.  This  led  to  the  regulation  or  prohibition  of  certain 
trades  conducted  in  tenement  houses  or  in  sweat  shops,  and 
to  other  matters  which  we  shall  find  it  more  convenient  to 
consider  under  the  head  of  labor  legislation. 

Whether  there  are  any  limits  to  this  power  is  much  dis- 
cussed. There  is  no  question  that  the  power  must  not  be  arbi- 
trary or  utterly  without  reason,  and  of  that  reason  the  courts 
must  and  do  in  fact  judge.  Taking  property  for  a  purpose 
unjustified  by  the  police  power  is,  of  course,  taking  property 
without  due  process  of  law.  An  arbitrary  statute  taking  the 
property  of  A  and  giving  it  to  B,  or  even  to  the  public,  with- 
out compensation  has,  from  the  time  of  Lord  Coke  himself, 
been  the  classic  definition  of  an  unjustifiable  law  and  one 
which  with  us  at  least  is  unconstitutional;  but  our  courts 
wisely  refuse  to  judge  if,  when  a  proper  police  motive  is  dis- 
closed in  the  statute,  it  is  the  best  method  of  effecting  the 
result.  This,  I  think,  is  a  clear  statement  of  the  principle 
of  our  court  decisions.  If,  upon  the  face  of  the  statute, 
the  court  can  see  no  possible  relation  to  the  public  health  or 
safety,  or,  possibly,  general  welfare,  it  will  hold  the  law 
null  in  so  far  as  it  invades  either  property  or  liberty  rights 
because  not  under  the  police  power.  If,  on  the  other  hand, 
they  can  see  some  relation  to  the  public  health,  safety,  or 
general  welfare,  even  though  they  do  not  think  it  the  best 
method  of  bringing  about  the  desired  result,  they  will  not 
presume  to  run  counter  to  legislative  opinion.  Of  the  ex- 
pediency of  the  statute,  the  legislature  must  be  and  is  the 
final  judge. 

With  us  the  police  power  is  exercised  largely  for  moral 
reasons.  That  is  to  say,  the  great  instances  of  its  extension 
have  been  connected  with  moral  or  sanitary  reform.  No 
doubt  the  police  power  may  broaden  with  advancing  civil- 
ization and  more  complex  appliances  and  possibly  greater 


144  POPULAR  LAW-MAKING 

medical  knowledge  and  social  solidarity.  No  doubt  pur- 
poses which  were  once  lawful  may  be  unlawful,  and  property 
devoted  to  them  thus  be  destroyed  by  a  change  in  the  law. 
Mr.  Justice  Brewer,  of  our  Supreme  Court,  holding  the  con- 
trary view,  was  overruled  by  the  majority,  and  that  decision 
is  final.1  Not  only  we,  but  a  State,  may  not  even  make  a 
contract  which  shall  be  immune  from  future  extension  of  the 
police  power,  the  Dartmouth  College  case  notwithstanding. 
For  instance,  the  State  of  Massachusetts  in  1827  granted  a 
perpetual  franchise  to  a  corporation  to  make  beer.  It  was 
allowed,  forty  years  later,  to  pass  a  law  that  no  corpora- 
tion should  make  beer,  and  the  brewery  became  valueless. 
The  State  of  Minnesota  granted  a  perpetual  franchise  to 
a  railroad  to  fix  its  own  fares.  Twenty  years  later  it  took 
away  that  right,  thereby,  as  claimed,  making  the  railroad 
property  valueless;  the  railroad  had  no  remedy.  A  man  in 
Connecticut  had  barrels  of  whiskey  in  a  cellar  for  many  years, 
but  the  State  was  allowed  to  pass  a  law  prohibiting  its  sale; 
which,  of  course,  had  he  been  a  teetotaler,  would  have  de- 
prived that  property  of  all  value,  and  in  any  case,  of  all 
exchange  value.  A  man  in  Iowa  owns  one  glass  of  whiskey 
for  several  years,  and  then  a  law  is  passed  forbidding  him 
to  sell  it;  the  law  is  valid.  A  youth  in  Nebraska  buys 
tobacco  and  paper  and  rolls  a  cigarette.  The  State  after- 
ward passes  a  law  forbidding  smoking  by  minors.  It  is  a 
crime  if  he  light  it.  Sufficient  has,  perhaps,  been  said  to 
show  the  extraordinary  scope  and  elasticity  of  this,  the  wid- 
est, vaguest,  and  most  dangerous  domain  of  our  modern  leg- 
islation, though  perhaps  we  should  add  one  or  two  striking 
cases  affecting  personal  liberty,  as,  for  instance,  a  citizen  of 
Pennsylvania  marries  his  first  cousin  in  Delaware  and  re- 
turns to  Pennsylvania,  where  the  marriage  is  void  and  he 
becomes  guilty  of  a  criminal  offence;  a  white  man  in  Massa- 
chusetts who  marries  a  negress  or  mulatto  may  be  guilty  of 
the  crime  of  miscegenation  in  other  States;  a  woman  might 

i  Mugler  v.  Kansas,  123  U.  S.  623. 


PURE  FOOD  AND  DRUG   LAWS  145 

work  fifty-eight  hours  a  week  in  Rhode  Island,  but  if  she  work 
over  fifty-six  in  Massachusetts  may  involve  her  employer,  as 
well  as  herself,  in  a  penal  offence. 

The  most  valuable  of  all  police  legislation  is,  of  course, 
that  to  protect  public  health  and  safety;  and  prominent  in 
the  legislation  of  the  last  twenty  years  are  the  laws  to  secure 
pure  and  wholesome  food  and  drugs.  Possibly  "whole- 
some" is  saying  too  much,  for  our  legislative  intelligence  has 
not  yet  arrived  at  an  understanding  of  the  danger  from  cold 
storage  or  imperfectly  canned  food,  though  Canada  and  other 
English  colonies  have  already  legislated  on  the  subject,  to 
say  nothing  of  our  tariff  war  with  Germany  on  the  point. 
One  may  guess  that  ninety-nine  per  cent,  of  the  present  food 
of  the  American  people,  leaving  out  the  farmers  themselves, 
is  of  meat  of  animals  which  have  been  dead  many  months, 
if  not  years,  and  from  vegetables  which  date  at  least  many 
months  back.  It  is  nonsense  to  suppose  that  such  food  is 
equally  wholesome  with  fresh  food,  or  that  there  is  not  con- 
siderable risk  of  acute  poisoning  or  a  permanent  impairment 
of  the  digestive  system.  Senator  Stewart,  of  Nevada,  has 
shown  that  nearly  fifty  per  cent,  of  the  soldiers  of  the  Spanish 
War  had  permanent  digestive  trouble,  as  against  less  than 
three  per  cent,  in  the  Civil  War,  which  took  place  before 
cold-storage  food  was  known,  or  canned  food  largely  in  use. 
It  was  hopeless  for  the  States  to  act  until  there  was  Federal 
legislation  on  the  subject,  as  the  health  authorities  had  no 
constitutional  power  over  goods  imported  from  other  States ; 
but  the  passage,  under  Roosevelt,  of  a  national  food  and 
drugs  act  has  given  a  great  impetus  to  the  reform,  and  by 
this  writing  more  than  half  the  States  have  passed  pure-food 
laws,  being  usually,  as  they  obviously  should  be,  an  exact 
copy  of  the  Federal  Act.  Among  the  articles  specially  men- 
tioned in  such  legislation  we  find  candy,  vinegar,  meat,  fertil- 
izers, milk,  butter,  spices,  sugar,  cotton  seed,  formaldehyde, 
insecticide,  and  general  provisions  against  adulteration,  false 
coloring,  the  use  of  colors  and  preservatives,  etc. 


146  POPULAR  LAW-MAKING 

Going  from  matters  merely  unwholesome  to  actual  poisons, 
the  course  of  legislation  on  intoxicating  liquors  is  too  familiar 
to  the  reader  to  make  it  necessary  to  more  than  refer  to  it, 
with  the  general  observation  that  in  the  North  and  East  the 
tendency  has  been  toward  high  licensing  or  careful  regula- 
tion, always  with  local  option ;  while  in  the  West  originally, 
and  now  in  the  South,  the  tendency  is  to  absolute  "State- 
wide" prohibition  and  even  to  express  this  principle  in  the 
constitution.  How  much  this  extreme  measure  is  based  on 
the  racial  question,  in  the  South  at  least,  is  a  matter  of  some 
debate;  and  the  working  of  such  laws  everywhere  from 
Maine  to  Georgia,  of  considerably  more.  One  may  hazard 
the  guess  that  the  wealthier  classes  have  no  difficulty  in 
getting  their  liquor  through  interstate  commerce,  while  the 
more  disreputable  classes  succeed  in  getting  it  surreptitiously. 
Prohibition,  therefore,  if  effective  at  all,  is  probably  only 
effective  among  the  respectable  middle  class  where,  perhaps, 
of  all  it  is  least  needed.  In  the  older  States,  at  least  in  Massa- 
chusetts, there  has  been  a  decided  tendency  away  from  pro- 
hibition in  the  last  twenty  years,  and  even  from  local  prohibi- 
tion in  the  larger  cities.  Worcester,  for  instance,  after  being 
the  largest  prohibition  city  in  the  world,  ceased  to  be  so  this 
year  by  the  largest  vote  ever  cast  upon  the  question. 

Whatever  may  be  said  of  the  strict  prohibition  of  liquor 
dealing,  no  one  can  have  any  objection  to  such  laws  as  ap- 
plied to  cocaine,  opium,  or  other  poisonous  drugs,  and  we 
find  statutes  of  this  sort  in  increasing  number;  while  the 
manufacture  and  sale  of  cigarettes  to  minors  or  even,  in  some 
States,  their  consumption,  is  strictly  prohibited,  under  crim- 
inal penalty.  Laws  of  a  similar  sort  were  aimed  at  oleo- 
margarine when  invented,  but  this  probably  not  so  much  to 
protect  the  health  of  the  people  as  the  prosperity  of  the  dairy- 
men. The  mass  of  such  legislation  has  emerged  from  the 
scrutiny  of  the  courts,  State  and  Federal,  with  the  general  re- 
sult that  only  such  laws  will  be  sustained  as  are  aimed  to  pre- 
vent fraud;  but  the  manufacture  and  sale  of  oleomargarine 


EXAMINATION   FOR  PROFESSIONS  147 

under  that  name  cannot  be  prohibited.  Artificial  coloring 
matter  may  be  forbidden,  but  a  New  Hampshire  law  was  not 
sustained  which  required  all  oleomargarine  to  be  colored 
pink ;  so  it  may  be  guessed  that  the  laws  of  those  States  which 
make  criminal  the  sale  or  use  of  cigarettes  to  or  by  children 
"apparently"  less  than  sixteen  or  eighteen,  will  hardly  be  sus- 
tained as  a  constitutional  police  measure;  yet  such  laws 
existed  in  1890,  while  the  State  of  Washington  in  1893  made 
the  sale  even  of  cigarette  paper  criminal. 

Another  important  line  of  modern  legislation  consists  in 
the  subjecting  of  trades  to  a  license  for  the  purpose  of  exam- 
ination (the  tax  feature  has  been  discussed  above).  Such 
laws  are  constitutional  when  applied  to  a  trade  really  relating 
to  the  public  health,  but  as  we  have  found  above,  black- 
smithing  is  not  such  an  one;  when  imposed  merely  for  the 
purpose  of  raising  revenue,  such  legislation  is  undoubtedly 
constitutional  under  our  written  constitutions,  but  opposed 
to  historic  English  principles,  which  insisted  for  seven  cen- 
turies of  statute-making  on  the  utmost  liberty  of  trade.  In 
a  South  American  republic  you  have  to  get  a  concession 
before  going  into  almost  any  business,  even  maintaining  a 
shoe-shop,  or  a  milk  farm,  which  concession  is,  of  course, 
often  obtained  by  bribery  or  withheld  for  corrupt  reasons. 
It  is  to  be  hoped  that  the  citizens  of  our  States  will  never  find 
themselves  in  that  predicament.  Still,  certain  State  con^ 
stitutions,  as  that  of  South  Carolina,  provide  absolutely  that 
all  trades  may  be  made  subject  to  a  tax,  and  the  tendency 
— particularly  in  the  South — to  raise  revenue  in  this  way  is 
increasing  by  leaps  and  bounds.  Among  the  trades  already 
subjected  to  such  licensing  or  taxing,  we  find  doctors,  of 
course,  and  properly,  pharmacists,  plumbers,  pedlars,  horse- 
shoers,  osteopaths,  dentists,  veterinary  surgeons,  accountants, 
bakers,  junk  dealers,  coal  dealers,  optometrists,  architects, 
barbers,  commission  merchants,  embalmers,  and  nurses.  Of 
course  it  is  a  motive  to  novel  or  irregular  trades  to  secure  a 
licensing  law  from  the  State,  for  the  slight  tax  insures  them 


148  POPULAR  LAW-MAKING 

protection.  This  is  the  reason  that  we  find  common  statutes 
allowing  osteopaths,  etc.,  to  be  licensed.  So  far  as  I  have 
observed,  there  is  no  such  statute  as  yet  in  any  State  applying 
to  Christian  Scientists. 

Police  regulation  for  the  safety  of  the  public  is  found  nearly 
entirely  in  the  laws  regulating  labor,  factories,  mines,  or 
machinery,  and  will  be  accordingly  treated  in  that  connection. 
Laws  protecting  the  public  against  fraud,  which  from  earli- 
est times  has  been  a  branch  of  police  legislation,  have  been 
of  late  years  numerous,  principally  in  connection  with  the 
prohibition  of  dealing  in  futures  or  sales  on  margin,  of  sales 
of  goods  in  bulk  without  due  precautions  and  notice  to  cred- 
itors, of  the  issue  of  trading  stamps  or  other  device  tending 
to  mislead  the  public.  Some  States  have  prohibited  depart- 
ment stores,  but  this  legislation  has  been  held  unconstitu- 
tional, though  the  early  English  labor  statutes  forbidding 
to  any  person  more  than  one  trade  or  mystery  will  by  the 
historical  student  be  borne  in  mind.  Usury  laws,  of  course, 
are  still  frequent,  but  decreasing  in  number  with  the  increas- 
ing modern  tendency  to  allow  freedom  of  contract  in  this  as 
in  other  matters,  except  only  to  such  persons  as,  for  instance, 
pawn-brokers,  who  peculiarly  require  police  regulation. 

Coming  to  statutes  which  merely  facilitate  business  as  it 
now  exists,  by  far  the  most  important  movement  has  been 
the  successful  work  of  the  State  Commissioners  on  Uniformity 
of  Law  in  getting  their  negotiable  instrument  act  passed  in 
nearly  all  the  States,  and  in  several  already  their  uniform 
law  statute  on  sales,  only  recommended  in  1907.  Some  prog- 
ress has  been  made  in  getting  a  uniform  standard  of  weights 
and  measures,  and  there  is  an  increasing  tendency  to  pre- 
scribe specific  weights  and  markings  for  packages — possibly 
unconstitutional  legislation .  Still  more  important  as  a  change 
in  previously  existing  law  has  been  the  increasing  tendency 
to  make  documents  other  than  bills  and  notes  negotiable. 
Perhaps  this  is  a  matter  which  requires  explanation  to  the 
lay  reader. 


NEGOTIABLE   INSTRUMENT  LAWS  149 

The  early  Anglo-Saxon  law  could  not  conceive  of  owner- 
ship of  property  as  distinct  from  possession,  and  to  their 
simple  minds,  when  ownership  was  once  acquired  it  was 
impossible  to  divest  the  owner  of  his  property  by  any  symbol- 
ical delivery.  Hence  the  very  early  statutes  making  fraudu- 
lent sales  or  conveyances  of  property  without  actual  and 
visible  change  of  possession.  The  notion  of  a  symbol,  a  paper 
or  writing,  which  should  represent  that  property  would  prob- 
ably have  impressed  them  like  a  spell  or  charm  in  a  child's 
fairy  tale.  Even  theft  with  asportation  could  not  alter  prop- 
erty rights,  even  in  favor  of  innocent  purchasers,  when  the 
owner  did  not  intend  to  part  therewith.  A  moment's  recol- 
lection of  what  is  now  perhaps  the  most  familiar  of  Teutonic 
saga  to  the  ordinary  reader,  the  text  of  Wagner's  "Ring  of 
the  Nibelung,"  will  give  ample  evidence  of  that  mental  atti- 
tude. But  the  Oriental  mind  was  far  more  subtile.  To  the 
Jews  or  Lombards  we  owe  the  discovery  of  that  bill  of  ex- 
change— the  first  of  negotiable  instruments,  and  the  first  his- 
torically to  bring  into  our  law  the  legal  concept  of  a  symbol 
of  ownership  which  might  be  instantly  transferred  with  an  ab- 
solute change  of  title  in  the  property  thereby  represented,  and 
this  either  to  a  present  transferee  or  to  one  far  away.  Thus, 
a  simple  bill  of  exchange  might  transfer  the  ownership  in  a 
pile  of  gold  in  a  moment  from  a  man  in  Venice  to  a  man  in 
London,  thereby  (if  the  law-merchant  was  respected)  freeing 
the  treasure  itself  from  attack  at  the  hands  of  the  Venetian 
authorities.  And  not  only  was  this  change  of  ownership  in- 
stantaneously effected  by  the  transfer  of  some  symbol  or  doc- 
ument representing  it,  but  there  also,  and  as  a  necessary  part 
of  the  invention,  grew  up  the  doctrine  that  the  transferee  was 
relieved  of  any  claims  against  the  property  at  the  hands  of  the 
previous  owner.  This  is  what  we  mean  by  negotiable;  and 
it  is  essential  that  the  precise  meaning  of  the  word  should 
be  understood  if  we  are  to  understand  the  importance  of 
this  legislation.  Even  most  business  men  have  a  very  vague 
understanding  of  the  difference  between  negotiable  and  as- 


150  POPULAR  LAW-MAKING 

signable.  Substantially  all  property  and  choses  in  action 
are  assignable,  except  personal  contracts;  and  in  ordinary 
business  many  of  them  are  assumed  to  be  negotiable,  such 
as  bills  of  lading,  warehouse  receipts,  trust  receipts,  or  cer- 
tificates of  stock.  Most  brokers,  or  even  bankers,  assume 
that  when  they  have  a  stock  certificate  duly  endorsed  to  them 
by  the  owner  mentioned  on  its  face  they  have  an  absolute 
and  unimpeachable  title  to  the  stock  therein  represented. 
Such,  of  course,  is  not  the  case  except  for  recent  statutes  in 
a  few  States.  To  take  a  familiar  example,  and  I  can  think 
of  none  better  to  show  exactly  the  difference  between  a  per- 
sonal contract  non-assignable,  a  document  which  is  assign- 
able, and  one  which  is  negotiable — a  Harvard-Yale  foot- 
ball ticket.  If  the  ticket  is  issued  by  the  management  to 
a  person  under  his  name,  with  a  condition  that  it  shall  be 
used  by  no  one  else,  it  is  a  contract  non-assignable.  If  it 
is  issued  to  him  in  the  same  manner,  but  with  no  provision 
against  assignment  or  the  use  by  another  person,  it  would 
entitle  such  other  person  to  whom  the  ticket  was  given  to 
use  the  seat,  but  only  under  the  title  of  the  original  holder; 
and  if  the  assignment  was  later  forbidden,  or  for  other  reasons 
the  right  recalled  by  the  management,  the  holder  would  have 
no  greater  title  to  the  seat;  the  contract  is  assignable,  but 
not  negotiable.  The  assignee  takes  it  merely  as  standing 
in  the  place  of  the  original  holder  and  subject  to  all  the 
equities  between  him  and  the  management.  If,  for  instance, 
the  ticket  were  given  him  by  fraud,  the  right  to  use  it  might 
be  revoked  and  the  transferee  would  have  no  greater  right 
than  the  original  holder.  But  if  the  ticket  were  negotiable, 
like  a  bank-note  payable  to  bearer,  the  holder,  not  actually 
himself  the  thief,  would  have  an  absolute  title  to  the  seat 
without  regard  to  anything  that  happened  prior  to  his  getting 
possession  of  the  ticket. 

Now  it  is  obvious  that  it  is  for  the  enormous  convenience 
of  business  to  have  business  documents  made  negotiable. 
If  a  banker  can  loan  on  a  bill  of  lading  or  a  warehouse  receipt, 


BILLS  OF  LADING  AND  WAREHOUSE  RECEIPTS     151 

or  a  trader  can  buy  the  same,  or  if  a  man  can  give  a  trust 
receipt  to  his  banker  agreeing  that  all  his  general  shipments 
or  stock  in  trade  shall  be  the  property  of  that  banker  until 
his  debt  is  paid,  it  makes  enormously  for  the  rapid  turning 
over  of  capital,  and  the  extension  of  credit.  Of  course,  an 
enormous  proportion  of  business  in  the  United  States  is 
conducted  upon  credit,  and  without  the  invention  of  the 
negotiable  instrument  those  credits  could  not  be  secured 
without  an  actual  delivery  of  the  commodities  intended  to 
secure  them.  And  the  custom  of  business  is  to  consider 
most  such  documents  negotiable  even  when  in  fact  they  are 
not  so.  It  is  more  than  usual  to  loan  money  upon  ware- 
house receipts,  bills  of  lading,  stock  certificates  or  trust  re- 
ceipts of  all  descriptions,  regardless  of  the  question  whether 
the  law  of  the  State  makes  them  negotiable.  Hence  the  very 
great  tendency  to  make  such  instruments  negotiable  by  stat- 
ute; and  I  find  many  such  laws,  beginning  in  1893  in  North 
Carolina,  as  to  warehouse  receipts,  while  the  Massachusetts 
statute  concerning  stock  dates  from  1884. 

A  reaction  to  the  English  common  law  is  the  statute, 
common  in  recent  years,  prohibiting  sales  in  bulk.  It  ap- 
pears to  have  been  a  growing  custom  for  merchants,  particu- 
larly retail  merchants,  when  in  financial  difficulties  to  sell 
their  entire  stock  in  trade  to  some  professional  purchaser 
by  a  simple  bill  of  sale  without  physical  delivery.  Nearly  all 
States  have  adopted  statutes  against  this  practice,  although 
in  several  they  have  been  held  unconstitutional.  The  feeling 
that  they  are  dishonest  is  doubtless  justified  by  the  facts; 
but  it  may  also  be  truly  described  as  a  reaction  to  the  simpler 
English  law  as  against  Oriental  innovations. 

The  descent  of  property  throughout  the  United  States  is 
regulated  by  English  common-law  ideas.  That  is  to  say, 
there  is  no  primogeniture,  although  in  early  colonial  times 
the  older  son  took  a  double  portion;  and  there  is,  except 
in  Louisiana,  complete  liberty  of  testamentary  disposition, 
although  in  one  or  two  other  States  there  have  been  statutes 


152  POPULAR  LAW-MAKING 

forbidding  a  man  to  dispose  of  all  his  estate  to  a  charity 
within  a  short  time  previous  to  his  death,  to  the  prejudice 
at  least  of  his  direct  heirs.  The  Code  Napoleon,  of  course, 
limits  testamentary  disposition  in  favor  of  these  latter,  so  in 
Louisiana,  only  half  of  a  man's  estate  can  be  given  away 
from  his  children  or  widow,  and  not  more  than  three-fourths 
of  his  estate  can  be  bequeathed  to  strangers  or  to  charity,  to 
the  prejudice  even  of  collateral  heirs. 

In  matters  of  general  business  the  usual  lines  of  legislation 
have  been  the  ordinary  ones  found  in  English  history.  That 
is  to  say,  statutes  of  frauds,  usury  or  interest  laws,  and  other 
familiar  matters.  The  only  tendency  one  can  note  is  a  broad 
range  of  legislation  devised  in  the  interest  of  the  debtor — not 
only  liberal  insolvency  laws  now  superseded  by  the  national 
bankruptcy  act,  which  is  still  more  liberal  than  the  laws  of  the 
States  preceding  it,  but  statutes  restricting  or  delaying  fore- 
closure of  mortgages,  statutes  exempting  a  substantial  amount 
of  property,  implements  of  trade,  agricultural  articles,  goods, 
land,  or  even  money,  from  the  claims  of  his  creditors.  The 
exemption  of  tools  or  implements  of  trade  goes  back  to 
Magna  Charta,  it  will  be  remembered,  but  the  exemption 
of  other  articles  is  modern  and  American.  There  is  prob- 
ably, however,  no  subject  which  is  so  apt  to  be  let  alone  by 
our  legislatures  as  that  of  business  law.  Upon  that  subject, 
at  least,  they  are  fairly  modest  and  inclined  to  think  that 
the  laws  of  business  are  known  better  by  business  men. 
Imprisonment  for  debt  is,  of  course,  absolutely  abolished 
everywhere,  and  in  most  States  a  woman  is  not  subject  to 
personal  arrest  in  civil  process.  The  statutes  prevailing 
throughout  the  country,  which  give  special  preference  to 
claims  for  wages  or  even  for  material  furnished  by  "material 
men,"  have  already  been  noted.  It  may  be  broadly  stated 
that  the  presumption  is  that  such  claims  are  everywhere  a 
preferred  debt  to  be  paid  out  of  the  estate  of  the  insolvent, 
living  or  dead,  in  preference  to  all  claims  except  taxes. 

The  security  of  mortgages  is  very  generally  impaired  by 


MORTGAGE  FORECLOSURE  LAWS  153 

legislation  confining  the  creditor  to  only  one  remedy  and  de- 
laying his  possession  under  foreclosure.  That  is  to  say,  in 
far  Western  States  generally,  he  cannot  take  the  land  or 
other  security,  and  at  the  same  time  sue  the  debtor  in  an 
action  for  debt  for  the  amount  due,  or  the  deficiency.  This, 
of  course,  makes  of  a  mortgage  a  simple  pledge.  Moreover, 
with  the  practice  of  delaying  possession  under  foreclosure, 
appointing  receivers  in  the  interest  of  the  debtor,  etc.,  he 
is  in  many  States  so  delayed  in  getting  possession  of  his 
security  that  by  the  time  he  acquires  it  he  will  find  it  burdened 
with  overdue  taxes  and  in  a  state  of  general  dilapidation. 
We  have  already  alluded  to  the  practice  in  California  of 
compelling  the  executor  of  a  mortgage  to  submit  himself 
to  the  jurisdiction  of  the  local  public  administrator,  which 
practically  results  in  a  sequestration  of  a  considerable  portion 
of  the  property.  For  all  these  reasons,  many  conservative 
lawyers  in  the  East,  at  least,  would  not  permit  their  clients 
to  invest  their  money  in  mortgages  in  California,  Minnesota, 
Washington,  or  the  other  States  indulging  in  such  legislation, 
and  partly  for  this  reason  the  rate  of  interest  prevailing  in 
mortgages  is  very  much  higher  in  the  far  West  than  it  is  in 
States  east  of  the  Missouri  River. 

The  greatest  mass  of  legislation  is,  of  course,  that  upon 
mechanic's  liens,  which  are  burdensome  to  a  degree  that  is 
vexatious,  besides  being  subject  to  amendment  almost  every 
year.  In  a  general  way,  no  land-owner  is  free  from  liability 
for  the  debt  of  any  person  who  has  performed  labor  or  fur- 
nished materials  on  the  buildings  placed  upon  the  land,  even 
without  the  knowledge  or  consent  of  the  land-owner  in  some 
States,  though  in  one  or  two  instances,  notably  in  California, 
such  legislation  has  been  carried  to  such  an  extreme  as  to 
make  it  unconstitutional. 

The  matter  of  nuisances  has  been  already  somewhat  cov- 
ered. Legislation  extending  the  police  power  and  declaring 
new  forms  or  uses  of  property  to  be  a  nuisance  is,  of  course, 
rapidly  increasing  in  all  States.  The  common-law  nuisance 


154  POPULAR  LAW-MAKING 

was  usually  a  nuisance  to  the  sense  of  smell  or  a  danger  to 
life,  as,  for  instance,  an  unsanitary  building  or  drain.  Noise, 
that  is  to  say,  extreme  noise,  might  also  be  a  nuisance,  and 
in  England  the  interference  with  a  man's  right  to  light  and 
air.  Legislation  is  now  eagerly  desired  in  many  States  of 
this  country  to  make  in  certain  cases  that  which  is  a  nuisance 
to  the  sense  of  sight  also  a  legal  nuisance,  as,  for  instance,  the 
posting  of  offensive  bills  on  the  fences,  or  the  erection  of  huge 
advertising  signs  in  parks  or  public  highways.  Such  a  law 
was,  however,  held  unconstitutional  in  Massachusetts.  There 
is  some  legislation  against  the  blowing  of  steam  whistles  by 
locomotives,  although  I  believe  none  against  the  morning 
whistle  of  factories,  and  some  against  the  emission  of  black 
smoke  in  specified  durations  or  quantities. 

But  perhaps  the  most  important  legislation  affecting  simple 
matters  of  business  other  than  the  line  of  statutes  already 
mentioned,  making  new  negotiable  instruments  and  control- 
ling the  title  of  property  by  the  possession  of  a  bill  of  exchange, 
bill  of  lading,  warehouse  or  trust  receipt,  are  those  statutes 
prohibiting  the  buying  of  "futures,"  or  the  enforcement  of 
gambling  contracts  to  buy  or  sell  stocks  or  shares  or  other 
commodities  without  actual  or  intended  change  of  posses- 
sion, which  we  have  necessarily  referred  to  in  our  discussion 
of  restraint  of  trade  (chapter  4).  There  is  a  very  decided 
tendency  throughout  the  country,  particularly  in  the  South, 
to  prohibit  all  buying  or  selling  of  futures,  that  is  to  say,  of 
a  crop  not  actually  sold,  or  of  any  article  where  physical 
delivery  is  never  intended,  and  it  will  be  remembered  we 
found  plenty  of  precedent  for  such  legislation  in  early  Eng- 
lish statutes.  Gambling  contracts  may  be  forbidden  only  in 
specified  places,  such  as  stock  exchanges;  and  the  buying  of 
futures  may  be  specially  permitted  to  favored  persons,  such 
as  actual  manufacturers  intending  to  use  the  goods;  and 
both  such  statutes  will  be  held  constitutional  and  not  an  un- 
due interference  with  the  liberty  of  contract.  These  matters 
were  largely  covered  by  the  statutes  of  forestalling  in  early 


THE  BUYING  OF  FUTURES  155 

times.  Legislation  more  distinctly  modern  is  that  against 
sales  in  bulk,  and  against  department  stores;  more  striking 
still  is  the  statute,  already  passed  in  Wisconsin  and  Virginia, 
forbidding  all  tips,  commissions,  or  private  advantages  se- 
cured by  any  servant  or  agent  in  carrying  on  the  business  of 
his  principal,  his  master,  or  the  person  with  whom  he  deals; 
the  statute  even  forbids  a  gratuity  intentionally  given  directly 
from  the  one  to  the  other.  It  is  hard  to  see  how  the  last 
clause  of  the  law  can  be  held  constitutional,  any  more  than 
the  laws  forbidding  department  stores,  although  such  com- 
missions may  be  forbidden  to  be  given  "unbeknownst." 

Weights  and  measures  are  standardized  by  the  Federal 
government,  and  to  these  standards  the  States  in  practice 
all  conform,  but  the  legal  weight  of  a  bushel  or  other  measure 
of  articles  varies  widely  in  the  different  States,  and  the  State 
Commissioners  on  Uniformity  of  Law  have  tried  in  vain  to 
get  the  matter  generally  regulated.  At  one  time  the  weight 
of  a  barrel  of  potatoes  in  New  York  City  was  fourteen  pounds 
more  than  it  was  in  Hoboken,  across  the  river.  In  Massa- 
chusetts the  weight  of  a  barrel  of  onions  was  increased  two 
pounds  to  conform  with  the  uniform  law  recommended  to 
all  the  States  by  the  commissioners;  but  a  representative  in 
the  State  Legislature  coming  from  a  locality  of  onion  farms 
lost  his  seat  in  consequence,  which  inspired  such  terror  in 
other  members  of  the  State  Legislature  that  the  uniform  law 
was  promptly  repealed,  the  weight  of  the  barrel  of  onions 
put  back  at  the  former  figure,  and  this  over  the  veto  of  the 
governor.  It  is  needless  to  say  that  the  whole  value  and 
object  of  the  whole  movement  for  uniformity  is  to  have  act- 
ual uniformity.  That  is  to  say,  unless  the  lawyer  or  citizen 
reading  the  statute  can  be  sure  that  it  is  uniform  with  the 
laws  of  all  other  States  without  taking  the  trouble  to  consult 
them,  the  reform  has  no  value.  But  it  has  proved  almost 
hopeless  to  get  this  through  the  brain  of  the  average  legisla- 
tor. The  uniform  law  upon  bills  and  notes,  indeed,  already 
mentioned,  is  treated  with  more  respect;  because,  as  has  been 


156  POPULAR  LAW-MAKING 

said  above,  they  regard  that  as  a  matter  of  business,  and  they 
have  some  respect  for  the  expert  knowledge  of  business 
affairs  possessed  by  business  men. 

The  licensing  of  trades  might  be  made  a  very  valuable 
line  of  legislation  to  prevent  the  fleecing  of  the  ultimate 
consumer  by  the  middleman.  Our  ancestors  were  of  the 
opinion  that  the  middleman,  the  regrator,  was  the  source 
of  all  evils,  and  they  were  also  of  the  opinion  that  any  com- 
bination whatever  to  control  the  price  of  an  article  of  food, 
or  other  human  necessity,  or  to  resell  it  elsewhere  than  at 
its  actual  market  and  at  the  proper  time,  was  a  conspiracy 
highly  criminal  and  prejudicial  to  the  English  people;  in 
both  of  which  matters  they  were,  in  the  writer's  opinion, 
perfectly  right,  and  far  more  wise  than  our  modern  delusion 
that  "business" — that  is  to  say,  the  making  of  a  little  more 
profit  from  the  larger  number  of  people — justifies  everything. 
Now,  at  the  time  of  the  coal  famine  of  1903,  Massachusetts 
passed  a  statute  licensing  dealers  in  coal;  the  law  for  the 
municipal  coal-yard  having  been  declared  unconstitutional. 
The  object  of  this  statute  was  not  to  derive  revenue  or  to 
restrict  trade,  but  to  regulate  profits;  and  in  particular  to 
prevent  the  retail  coal-dealers  from  combining  to  fix  the  price 
of  coal  themselves.  Yet  in  spite  of  this  legislation,  the  ice- 
dealers  of  Massachusetts  only  this  year  (1910)  assembled  in 
convention  in  Boston  upon  a  call,  widely  advertised  in  the 
newspapers,  that  they  were  holding  the  assembly  for  that 
precise  purpose,  that  is  to  say,  to  fix  and  control  the  price  and 
the  output  of  ice.  They  were,  indeed,  "malefactors  of  great 
wealth";  at  least  we  may  guess  the  latter,  and  the  animus 
of  a  more  intelligent  precedent  may  some  day  hopefully  be 
directed  to  such  definite  evils,  of  which  our  ancestors  were 
well  aware,  rather  than  blindly  running  amuck  at  all.  The 
coal-dealers  in  Boston,  by  the  way,  made  the  same  argument 
that  is  always  made,  and  was  made  at  Athens  in  the  grain 
combination  of  the  third  century  B.  C. — to  wit,  that  they  put 
up  the  prices  in  order  to  prevent  other  people  buying  all 


LAWS  AGAINST  MIDDLEMEN  157 

the  coal  and  speculating  in  it;  but  notwithstanding  that 
showing  of  their  altruistic  motives,  the  secretary  of  state 
revoked  the  license  of  the  coal  company  in  question.  The 
statute  also  forbade  the  charging  extortionate  prices,  which, 
again,  was  a  perfectly  proper  subject  of  legislation  under  the 
common  law;  but,  unfortunately,  was  carelessly  drawn,  so 
that  it  resulted  in  a  somewhat  cloudy  court  opinion. 

For  the  matter  of  uniform  legislation  the  reader  must  be 
referred  in  general  to  reports  of  the  National  Commission. 
Their  greatest  achievement  has  been  the  code  of  the  law  of 
bills  and  notes  just  mentioned.  Besides  this  they  have  just 
adopted  a  code  on  the  law  of  sales,  and  they  have  recom- 
mended brief  and  uniform  formalities  as  well  as  forms  for 
the  execution  and  acknowledgment  of  deeds  and  wills,  and 
have  very  considerably  improved  the  procedure  in  matters  of 
divorce. 

The  best  modern  legislation  concerning  trade  and  business 
is,  of  course,  that  of  the  pure-food  laws.  The  Federal  law 
has  certainly  proved  effective,  although  it  is  in  danger  of 
being  repealed  or  emasculated  in  the  interest  of  the  "special 
interests  " ;  most  of  the  State  laws  simply  copy  it.  Undoubt- 
edly the  laws  should  be  identical  in  interstate  commerce  and 
in  all  the  States;  and  this  can  only  be  done  bv  voluntary 
uniform  action. 


VIII 
REGULATION  OF  RATES  AND  PRICES 

This,  the  last  method  of  infringing  upon  absolute  rights 
of  property,  has  assumed  such  importance  of  recent  years  as 
to  deserve  and  require  a  chapter  by  itself.  The  reader  will 
remember  what  precedents  we  found  for  the  fixing  of  prices, 
wages,  and  rates  or  tolls  in  England.  It  may  be  convenient 
for  our  purposes  to  use  these  three  definite  words  to  mean  the 
three  definite  things — prices  in  the  sense  of  prices  of  goods  or 
commodities;  wages  the  reward  of  labor  or  personal  services; 
and  rates  (the  English  word  is  tolls)  for  the  charges  of  what 
we  should  now  term  public-service  corporations,  or  in  old 
English  law,  franchises,  or  what  our  Supreme  Court  has 
termed  "avocations  affected  with  a  public  interest."  The 
reader  will  remember  that  the  attempted  regulation  of  prices 
began  early  and  was  short-lived,  dating  from  the  Assize  of 
Bread  and  Beer  in  1266,  to  the  Statute  of  Victuals  of  1362, 
hardly  a  century,  and  even  these  two  precedents  are  not 
really  such,  for  the  first  only  fixed  the  price  of  bread  and  beer 
according  to  the  cost  of  wheat  or  barley,  just  as  to-day  we 
might  conceivably  fix  the  price  of  bread  at  some  reasonable 
relation  to  the  price  of  flour  in  Minneapolis,  and  as  it  was 
fixed  in  ancient  Greece  by  the  wholesale  price  of  wheat  at 
Athens  l — not  as  it  now  is,  from  three  to  four  times  the  cost 
of  bread  in  London,  although  made  out  of  the  same  flour 
shipped  there  from  Minneapolis;  and  the  two  latest  statutes 
expressly  say  that  they  fix  the  price  by  reason  of  the  great 

»  For  an  actual  report  of  an  indictment  and  jury  trial  for  forestalling  and 
regrating  wheat  in  the  third  century  B.  C.,  see  Lysias's  oration,  translated 
by  Dr.  Frederic  Earle  Whitaker,  in  Popular  Science  Monthly,  April,  1910. 

158 


LAWS  FIXING  THE  RATE  OF  WAGES  159 

dearness  of  such  articles  on  account  of  the  Black  Death  or 
plague,  and  the  consequent  scarcity  of  labor.  Then  the 
Statute  of  Laborers  of  1349  provided  that  victuals  should 
be  sold  only  at  reasonable  prices,  which  apparently  were  to 
be  fixed  by  the  mayor.  With  these  statutes  the  effort  to 
fix  prices  by  general  statute  disappeared  from  English  civil- 
ization save,  of  course,  as  prices  may  be  indirectly  affected 
by  laws  against  monopoly,  engrossing,  and  restraint  of  trade; 
and  local  ordinances  in  towns  continued  probably  for  some 
time  longer. 

Legal  regulation  of  wages  lasted  much  longer  in  England; 
and  has  reappeared  in  very  recent  years,  at  least  in  the  Austra- 
lasian colonies,  with  a  beginning  of  such  legislation  in  Great 
Britain  and  Ireland  and  the  State  of  New  York.  The  first 
Statute  of  Laborers  merely  provides  that  the  old  wages  and 
no  more  shall  be  given.  The  next  year,  however,  in  1350, 
the  exact  rate  of  wages  was  fixed;  and  this  lasted  for  more 
than  two  centuries,  to  the  reign  of  Elizabeth,  the  so-called 
"great"  Statute  of  Laborers  consolidating  all  the  previous 
ones.  It  is  apt  to  be  the  case  that  when  a  statutory  system 
has  reached  its  full  development  it  falls  into  disuse;  and  that 
is  certainly  the  case  here.  There  is  no  later  statute  in  Eng- 
land until  1909  fixing  directly  or  indirectly  the  rate  of  wages; 
and  it  may  be  doubted  whether  the  justices  of  the  peace  con- 
tinued to  fix  them  for  many  years  under  the  Statute  of  Eliza- 
beth. More  than  three  centuries  were  to  go  by  before  this 
principle  reappeared  in  legislation  or  attempted  legislation ; 
but  in  Australia,1  New  Zealand,2  and  England  3  there  has 
been  recent  legislation  for  a  legally  fixed  rate  of  wages  to  be 
determined  for  practically  all  trades  by  a  board  of  referees, 
consisting,  as  such  boards  usually  do  consist,  of  one  member 
to  represent  capital,  one  to  represent  labor,  and  the  third  to 
represent  the  public  or  the  state.  As  such  third  representa- 

1  So.  Australia,  1906,  no.  915;  1900,  no.  752;  Victoria,  1903,  no.  1,857; 
1905,  no.  2,008. 

*  See  New  Zealand  Law  of  1900,  no.  51;  frequently  amended  since. 
»  60  and  61  Victoria,  c.  37,  9  Edward  VII. 


160  POPULAR  LAW-MAKING 

tive  almost  invariably  votes  on  the  side  of  the  greatest  num- 
ber of  voters,  this  practically  makes  a  commission  hardly 
impartial.  The  working  of  the  system  in  New  Zealand  will 
be  found  discussed  in  the  Westminster  Review  for  January, 
1910.  There  is  an  appeal  to  the  courts  from  the  rate  of 
wages  fixed  by  such  commission;  and  it  appears  that  out 
of  four  such  appeals,  in  three  the  decision  of  the  commission 
was  confirmed,  and  in  the  fourth  set  aside;  but  the  working- 
men  disregarded  the  judgment  of  the  court  and  struck  for 
a  higher  wage — contrary  to  the  whole  theory  of  such  legisla- 
tion, which  is  to  prevent  strikes.  This  strike  succeeding, 
there  has,  therefore,  been  no  case  so  far  where  the  increasing 
rate  of  wages  was  checked  by  any  appeal  to  the  courts. 

In  the  British  Parliament  last  year  (and  the  identical  bill 
has  been  introduced  in  the  State  of  New  York  under  cham- 
pionship of  the  Consumers  League,  as  applied  to  women  and 
children),  a  bill  was  introduced,1  not  backed,  however,  by 
the  government  as  such,  although  bearing  the  name  of 
Lloyd-George,  providing  in  effect  that  wages  might  be  fixed 
in  this  manner  in  certain  definite  named  trades,  and  also  in 
such  other  trades  as  might  be  designated  from  time  to  time 
by  the  home  secretary.  The  economic  effect  of  such  measures 
we  are  not  to  discuss.  In  the  United  States,  except  as  to 
public  work,  they  would  be  probably  unconstitutional. 

Coming,  therefore,  to  public  work,  we  use  this  phrase  for 
all  labor  contributed  directly  to  the  State,  to  any  county, 
city,  town,  village,  or  municipality  thereof,  to  any  municipal- 
owned  public-service  corporation,  gas,  water,  etc.,  company, 
or,  finally,  and  most  important,  to  or  under  any  contractor 
for  the  same,  or  any  of  them.  Some  years  ago  the  State  of 
New  York  adopted  legislation  to  the  effect  that  in  all  such 
public  employment  the  wages  paid  should  be  the  usual  rate 
paid  for  similar  work  in  the  same  locality  at  the  same  time. 
As  a  result  of  this  legislation,  many  thousands  of  lawsuits 
were  brought  against  the  City  of  New  York  by  persons  who 

1  Since  enacted;  see  below  in  chap.  XI. 


WAGES  IN  PUBLIC  WORK  161 

had  done  labor  for  that  municipality  in  the  past,  complaining 
that  they  had  not  in  fact  been  paid  "the  prevailing  rate," 
although  in  fact  the  work  had  long  since  terminated,  and  they 
had  been  discharged,  paid  in  full,  and  apparently  satisfied. 
Shortly  after,  the  law  itself  was  declared  unconstitutional  by 
New  York  courts.  Thereupon  the  labor  interests  proposed 
a  constitutional  amendment  in  1905,  to  the  effect  that  "the 
legislature  may  regulate  and  fix  the  wages  or  salaries,  the 
hours  of  work  or  labor,  and  make  provision  for  the  protection, 
safety,  and  welfare  of  persons  employed  by  the  State  or  by 
any  county,  city,  town,  village,  or  other  civil  subdivision  of 
the  State,  or  by  any  contractor  or  subcontractor  performing 
work,  labor,  or  services  for  the  State  or  for  any  city,  county, 
town,  village,  or  other  civil  division  thereof."  A  very  small 
proportion  of  the  voters  of  New  York  took  the  trouble  to 
vote  upon  this  amendment,  although  it  revolutionized  the 
economic,  if  not  the  constitutional,  system  of  the  State,  so 
far  as  property  and  contract  rights  are  concerned;  and  it 
was  adopted  by  a  substantial  majority.  In  Indiana  there  was 
a  statute  at  one  time  fixing  the  rate  of  wages  in  public  em- 
ployment at  a  minimum  of  not  less  than  fifteen  cents  per 
hour,  but  it  was  held  unconstitutional.  It  is  customary  in 
New  England  villages  to  vote  annually  that  the  town  shall 
pay  its  unskilled  labor  a  prescribed  rate  for  the  following 
year,  usually  two  dollars  per  day.  The  effect  of  this  has 
been  sometimes  to  cause  the  discharge  of  all  but  the  very 
most  skilful  and  able-bodied;  of  those  who  had,  by  working 
at  less  than  full  pay,  been  kept  out  of  the  poorhouse;  and 
the  selectmen  of  some  towns,  notably  Plymouth,  have  refused 
to  obey  such  a  vote.  The  California  Code  of  1906  provides 
a  minimum  compensation  of  two  dollars  per  day  for  public 
labor,  except  as  to  persons  regularly  employed  in  public 
institutions.  Delaware  has  copied  the  New  York  statute 
as  to  the  prevailing  rate.  Hawaii,  in  public  labor,  provides 
a  minimum  wage  of  one  dollar  and  twenty-five  cents  per  day. 
Nebraska  goes  further,  and  provides  not  only  for  two  dollars 


162  POPULAR  LAW-MAKING 

per  day  for  public  work,  but  that  it  must  \>e  done  by  union 
labor  in  cities  of  the  first  class,  while  Nevada  has  a  minimum 
wage  of  three  dollars  and  an  eight-hour  day  for  unskilled 
labor  in  public  work.  On  the  other  hand,  the  Constitution 
of  Louisiana  prescribes  that  no  law  shall  ever  be  passed 
fixing  the  price  of  manual  labor.1 

Coming  lastly  to  tolls,  or  rates  of  persons  or  corporations 
enjoying  a  franchise,  that  is  to  say,  a  legalized  monopoly,  or 
exclusive  legislation,  or  special  privilege,  such  as  eminent 
domain,  or  the  right  to  occupy  the  streets;  such  are,  in  fact, 
identical  with  what  we  term  public-service  corporations,  the 
older,  the  most  universal,  and  certainly  the  most,  if  not  the 
only,  justifiable  example  of  legal  regulation  of  the  returns 
for  the  use  of  property  or  personal  services. 

Whatever  may  be  thought  of  the  economic  wisdom  of  at- 
tempting to  regulate  any  rate  or  prices  by  law  (and  for  a 
discussion  of  this  subject  as  to  railways,  at  least,  the  reader 
may  well  be  referred  to  the  valuable  treatise  of  Mr.  Hugo 
R.  Meyer,  "State  Regulation  of  Railways"),  such  legislation 
was  at  least  in  England  constitutional;  but  in  this  country, 
owing  to  our  specific  adoption  of  the  principle  of  property 
rights  and  freedom  of  labor  and  hence  of  freedom  of  contract 
in  our  Federal  and  State  constitutions,  and  as  it  has  been 
repeatedly  decided  that  to  take  away  the  income  from  prop- 
erty or  a  reasonable  return  for  labor  by  legislation  is  to  in- 
fringe on  the  property  or  liberty  right  itself,  we  have  a  uni- 
versally recognized  constitutional  objection  which  has,  in 
fact,  made  impossible  all  regulation  of  prices  and  wages, 
except  as  above  mentioned,  and  as  we  are  now  about  to 
discuss.  The  first  attempt  to  regulate  rates  (with  the  possi- 
ble exception  of  some  early  colonial  laws)  was  the  so-called 
Granger  legislation,  as  shown  in  the  Illinois  Constitution  of 
1870,  authorizing  a  warehouse  commission  to  fix  charges 
for  elevating  grain,  the  Act  of  Iowa  of  1874  establishing 
reasonable  maximum  rates  for  railways,  a  similar  act  in 
i  This  matter  will  be  found  further  discussed  in  chap.  XL 


THE  GRANGER  CASES  163 

Wisconsin  of  the  same  year  relating  to  railroad,  express,  and 
telegraph  companies,  and  in  Minnesota;  which  legislation 
was  all  sustained  by  a  divided  opinion  in  the  so-called  Granger 
cases  headed  by  Munn  v.  Illinois,  94  U.  S.  113. 

In  the  many  years  which  have  elapsed  since  this  famous 
decision,  the  clouds  have  rolled  away  and  the  shape  and  basis 
of  that  apex  of  our  jurisprudence  been  fairly  surveyed.  It  will 
appear,  I  think,  to  any  dispassionate  jurist  to  have  been 
rightly  decided,  at  least  as  to  the  railroads,  though  the  reasons 
given  by  Chief  Justice  Waite  are  unsatisfactory  and  have 
little  logical  basis.  The  true  basis  of  regulation  of  rates 
at  the  common  law  and  in  English  history  was  monopoly  ; 
either  a  franchise  directly  granted  by  the  crown,  such  as  a 
bridge,  ferry,  or  dock,  or  one  which  was  geographically,  at 
least,  exclusive,  like  a  dock  without  a  franchise.  As  Lord 
Ellenborough  said  in  the  decision  quoted  by  the  Chief  Justice 
himself:  "Every  man  may  fix  what  price  he  pleases  upon 
his  own  property,  or  the  use  of  it;  but  if  for  a  particular 
purpose  the  public  have  a  right  to  resort  to  his  premises  and 
make  use  of  them,  and  he  have  a  monopoly  in  them  for  that 
purpose,  if  he  will  take  the  benefit  of  that  monopoly,  he  must, 
as  an  equivalent,  perform  the  duty  attached  to  it  on  reason- 
able terms."  "//  for  a  particular  purpose  the  public  have  a 
right  to  resort  to  his  premises" — this  important  qualification 
from  now  on  seems  to  have  been  lost  sight  of  in  the  majority 
opinion.  Quoting  the  early  precedents  such  as  that  statute 
of  William  and  Mary  regulating  the  charges  of  common 
carriers — and  our  readers  will  remember  many  more — and  the 
case  of  cabmen  whose  charges  are  regulated  by  city  ordi- 
nances— but  they  are  given  stands  or  exclusive  privileges  in 
the  streets — the  chief  justice  concluded  with  the  startling 
proposition  that  "if  they  do  not  wish  to  submit  themselves 
to  such  interference,  they  should  not  have  clothed  the  public 
with  an  interest  in  their  concerns."  But  the  public  has  an 
interest,  as  was  afterward  pointed  out  in  dissenting  opinions, 
in  the  price  of  shoes;  yet  it  has  never  been  supposed  that 


164  POPULAR  LAW-MAKING 

that  gave  any  power  of  legal  regulation  of  factory  prices. 
A  still  stronger  case  is  that  of  inns  or  hotels,  which  have 
always  been  "a  public  avocation."  They  have  had  to  take 
in  all  travellers  without  discrimination;  yet  there  is  not  a 
vestige  of  legislation  in  the  English  statute-book  regulating 
the  prices  to  be  charged  by  hotels.  Indeed  in  early  times 
most  employments — millers,  barbers,  bakers — were  public 
in  the  sense  that  the  man  could  not  refuse  a  job;  yet  their 
prices  were  never  regulated.  Yet  it  was  upon  this  phrase, 
"public  employment"  or  "private  property  affected  with  a 
public  interest'1  taken  from  the  opinion  of  Justice  LeBlanc 
in  the  London  Dock  Company  case,  decided  in  1810,  with- 
out its  context,  that  the  chief  justice  built  up  the  whole  reason 
of  his  decision.  The  decision  in  Munn  v.  Illinois,  subject  to 
court  review  as  to  whether  the  rate  be  confiscatory,  remains 
good  law,  but  the  opinion  is  still  open  to  question;  and  in- 
deed the  most  recent  decisions  of  the  Supreme  Court  show 
a  desire  to  get  away  from  it. 

Some  writers  endeavor  to  justify,  under  our  constitutions, 
the  regulation  of  rates  by  the  principle  of  eminent  domain; 
but  this  source  seems  far-fetched  and  unnecessary.  It  is, 
of  course,  done  under  the  police  power;  but  the  precedent 
for  that  use  of  the  police  power  is  to  be  found  in  the  history 
of  English  law  and  statutes.  Thus  we  have  noted  in  the 
Statute  of  Westminster  I,  A.  D.  1275,  that  excessive  toll 
contrary  to  the  common  custom  of  the  realm  was  forbidden 
in  market  towns.  The  very  phraseology  of  this  statute 
indicates  the  antiquity  of  the  doctrine  that  tolls  must  be 
reasonable;  but  "toll"  was  always  a  technical  term,  not  for 
ordinary  prices  of  commodities,  but  for  a  use  or  service  which 
was  in  some  way  dependent  upon  law  or  ordinance.  In  the 
very  opinion  of  Chief  Justice  Waite,  he  quotes  Lord  Hale, 
saying  that  the  king  "has  a  right  of  franchise  or  privilege, 
that  no  man  may  set  up  a  common  ferry  without  a  prescrip- 
tion time  out  of  mind,  or  a  charter  from  the  king,"  and  so 
later  he  quotes  Lord  Hale  as  saying  that  the  same  principle 


THEORY  OF  RATE  REGULATION  165 

applies  to  a  public  wharf  "because  they  are  the  wharves  only 
licensed  by  the  king."  We  also  found  legislation  fixing 
rents  and  so  on  in  staple  towns,  and  consequently  of  the 
charges  of  property  owners  therein,  such  towns  having  grant 
of  a  special  privilege.  The  early  law  books  are  full  of  cases 
showing  that  discrimination  and  extortion  were  unlawful, 
even  criminal,  offences.  And  finally,  as  Chief  Justice  Waite 
points  out,  we  find  the  rates  of  carriers  fixed  by  law  in  1691. 
Ordinary  carriers,  not  having  the  right  of  eminent  domain 
such  as  express  companies,  might  to-day  be  considered  to 
have  no  legal  monopoly,  and  indeed,  possibly  for  that  reason, 
the  regulation  of  charges  of  express  companies  has  not  yet 
been  attempted;  but  in  King  William's  time  it  was  doubtless 
considered  that  the  carriers  had  special  privileges  on  the 
highways,  as  indeed  they  did. 

It  seems  to  me,  therefore,  that  the  real  reason,  both  log- 
ical and  historical,  for  regulation  of  rates  rests  on  the  fact 
that  the  person  or  corporation  so  regulated  is  given  a  mo- 
nopoly or  franchise  by  some  law  or  ordinance,  or  at  least  a 
special  privilege  from  the  State;  or  at  least  that  he  maintains 
a  wharf,  a  bridge,  or  a  ferry,  or  other  avocation  which  (really 
for  the  same  reason)  has,  from  time  immemorial,  been  sub- 
ject to  such  regulation.  This,  indeed,  has  been  the  doctrine 
officially  adopted  by  the  Commonwealth  of  Massachusetts 
in  its  legislation — "Where  monopoly  is  permitted,  State 
regulation  is  necessary."  The  new  "Business"  Corporation 
Act  of  1903  makes  the  express  distinction  between  public- 
service  corporations  and  all  other  private  corporations  for 
gain:  it  applies  to  "all  corporations  .  .  .  established  for 
the  purpose  of  carrying  on  business  for  profit  .  .  .  but  not 
to  ...  railroad  or  street  railway  company,  telegraph  or 
telephone  company,  gas  or  electric  light,  heat  or  power  com- 
pany, canal,  aqueduct  or  water  company,  cemetery  or  crema- 
tory company,  or  to  any  other  corporations  which  now  have 
or  may  hereafter  have  the  right  to  take  or  condemn  land  or 
to  exercise  franchises  in  public  ways  granted  by  the  common- 


166  POPULAR  LAW-MAKING 

wealth  or  by  any  county,  city,  or  town."  The  implication 
is  that  such  other  corporations  are  not  given  the  entire  free- 
dom of  action  and  contract  conferred  by  this  Business  Cor- 
poration Act.  Where  the  State  creates  a  monopoly,  it  puts 
the  public  at  the  mercy  of  the  grantee  of  that  franchise. 
Therefore,  it  is  logical  and  just  that  it  should  regulate  the 
rates.  The  test,  however,  is  not  and  cannot  be,  that  the 
man  is  ready  to  serve  all  comers,  or  even  that  he  is  compelled 
so  to  do;  hotel-keepers,  barbers,  restaurants,  doctors,  etc., 
have  never  had  their  charges  regulated  by  law.  In  early 
days  most  tradesmen  were  compelled  to  serve  any  and  all, 
at  an  equal  price,  under  liability  for  damages.1  Mills,  in- 
deed, have  always  been  subject  to  have  their  tolls  regulated; 
at  least,  a  certain  proportion  of  the  grist  had  to  go  to  the 
miller;  but  even  if  it  be  held  they  had  no  peculiar  franchise, 
the  exception  is  as  old  as  the  rule. 

It  is  further  noteworthy  that  since  the  Granger  cases  them- 
selves, there  has  been  no  extension  of  the  doctrine  of  Chief 
Justice  Waite  to  other  trades  or  industries,  while  the  extent 
of  the  doctrine,  that  is,  the  amount  of  regulation  permissible 
under  the  Constitution,  has  been  very  much  limited.  Waite's 
opinion  gives  no  intimation  of  any  constitutional  limit 
whatever,  but  dozens  of  the  decisions  of  the  Supreme  Court 
since  draw  the  limit  this  side  of  the  point  of  confiscation; 
that  is  to  say,  at  a  "reasonable  return,"  whatever  that  phrase 
may  mean.  It  was,  indeed,  at  first  extended  to  semi-private 
grain  elevators  on  the  prairies,  to  elevators  monopolizing  the 
water  front  of  Buffalo,  New  York,  and  to  floating  elevators 
in  New  York  Harbor,  the  first  and  last  of  which  show  cer- 
tainly no  element  of  legal  monopoly,  while  the  Buffalo  case 
at  most  only  a  geographical  one.  Still,  elevators  were  the 
subject  of  Munn  v.  Illinois  itself. 2  And  it  has  never  been 
extended  to  a  mere  de  facto  or  "  virtual "  monopoly  arising 
only  from  the  accident  of  trade.  Moreover,  in  matters  of 

»  Holmes  J.,  ex  banco,  in  United  States  v.  Standard  Oil  Co.,  March  14,  1910. 
2  We  may  divide  monopolies  into  legal,  geographical,  and  de  facto,  or 
"  virtual "  monopolies — phrases  which  sufficiently  describe  themselves. 


REGULATION  BY  THE  STATES  167 

interstate  commerce,  although  it  might  have  been  argued 
that  such  affairs  were  left  absolutely  to  the  plenary  power  of 
Congress,  which  might  well,  if  it  chose,  pass  laws  preventing 
any  railroad  from  engaging  in  interstate  business,  except 
at  ascertain  rate  per  mile  for  passengers  or  freight — or  that 
no  vessel  should  be  allowed  to  carry  passengers  or  freight 
from  foreign  countries  except  at  a  certain  price  per  head  or 
per  ton — yet  the  Supreme  Court  seems  to  have  held  that  even 
this  plenary  power  over  commerce  expressly  given  to  Con- 
gress in  the  Constitution,  is  limited  by  the  ordinary  property 
guarantees  of  that  instrument;  possibly  because  the  Fifth 
Amendment  is  of  later  date  than  the  body  of  the  Constitu- 
tion. 

We  thus  find  that  the  earliest  legislation  regulating  rates 
was  that  of  the  States.  It  was  thirteen  years  after  the  Iowa 
statute  above  referred  to  that  the  Interstate  Commerce  Act 
was  passed,  which  was  supposed  to  give  a  power — afterward 
denied  by  our  Supreme  Court — to  the  Interstate  Commerce 
Commission  to  fix  rates.  It  certainly  did  give  them  power 
to  find,  upon  complaint,  what  was  a  reasonable  rate,  which 
was  prima  facie  evidence  in  case  of  appeal.  In  hundreds 
of  cases  actual  rates  were  complained  of,  in  probably  many 
more  discrimination  was  complained  of,  and,  according  to 
Mr.  Meyer,  the  commission  was  found  by  the  Supreme  Court 
to  have  decided  rightly  about  half  the  time.  In  1903  came 
the  intelligent  Elkins  Bill  against  discrimination,  which 
merely  re-enacts  the  common  law,  and  up  to  within  two  or 
three  years  has  proved  the  only  really  effective  measure  of 
controlling  the  rates  themselves.  In  1906  came  the  Hepburn 
Act  under  Roosevelt,  giving  general  power  to  the  commission 
to  fix  rates  upon  complaint,  to  make  joint  rates,  extending 
the  statute  to  the  oil  pipe-lines,  express  companies,  and 
sleeping-car  companies,  and  going  to  the  verge  of  the  Con- 
stitution in  an  effort  to  provide  that  rates  fixed  by  the  com- 
mission should  take  immediate  effect.  So  far  as  most  recent 
decisions  go,  however,  this  great  statute  has  not  altered  the 


168  POPULAR  LAW-MAKING 

position  of  the  Supreme  Court  of  the  United  States  as  to  the 
constitutional  necessity  of  a  reasonable  return  to  the  carrier, 
and  perhaps  the  cardinal  question  remains  to  be  decided, 
whether  such  rate-making  power  is  legislative,  and,  if  so, 
may  under  the  Federal  Constitution  be  delegated  by  Congress 
to  any  board.  Congress  merely  proclaims  that  the  rates 
shall  be  reasonable  and  without  discrimination — both  mere 
expressions  of  the  common  law — and  leaves  the  determina- 
tion of  what  is  reasonable  between  the  Interstate  Commerce 
Commission  and  the  Supreme  Court,  neither  of  them  legis- 
lative bodies.  The  common  law  may,  indeed,  be  decided 
by  a  judicial  body;  but  it  is  difficult  to  see  why  the  alteration 
of  the  common  law  is  not  legislation.  And  this  criticism 
applies  a  fortiori  to  the  Taft  Bill  just  enacted  (June,  1910)} 
which  gives  the  Interstate  Commerce  Commission  power  to 
fix  rates  of  their  own  motion.  When,  therefore — if  the  author 
may  venture  to  repeat  his  words — the  commission  fix  a  "just 
and  reasonable"  rate,1  if  they  are  applying  the  common  law, 
their  act  is  judicial;  if  they  are  fixing  other  standards,  it  is 
legislative.2 

Coming  to  the  States  again,  this  constitutional  difficulty 
does  not  concern  us,  for  it  has  been  decided  that  the  division 
of  powers  into  legislative,  executive,  and  judicial  must,  as  to 
the  States,  be  expressly  provided  in  the  State  constitutions 
and  is  not  guaranteed  under  the  Fourteenth  Amendment. 
Broadly  speaking,  the  history  of  legislation  has  been  as  fol- 
lows: The  States  have  usually  exercised  their  rate-making 
power  through  a  railroad  or  corporation  commission.  New 
York  and  Virginia  now  employ  the  more  comprehensive 
phrase  "public  service"  or  "corporation"  commission.  The 
Massachusetts  statute,  like  the  Granger  statutes,  dates  from 
1874.  Just  as  we  found  in  the  Middle  Ages  in  the  case  of 
the  Black  Death  in  times  of  famine,  so  times  of  panic  with 
us  have  always  produced  radical  legislation:  this,  it  will  be 

i  United  States  Act  of  February  4,  1887,  as  amended  June  29,  1906,  sec.  15. 
2Stimson's   "Federal   and    State   Constitutions   of    the  United   States," 
p.  53. 


DIFFICULTIES  OF  RATE  REGULATIONS          169 

noted,  is  the  year  after  the  great  panic  of  1873.  But  the  Massa- 
chusetts law,  the  earliest  of  all,  did  not  and  does  not  authorize 
any  fixing  of  rates,  or  even  any  finding  as  to  what  was  reason- 
able upon  rates.  It  extends  only  to  the  other  conditions 
of  service.  The  statute  is,  perhaps,  broad  enough  to  permit 
such  a  finding  as  matter  of  opinion;  but  it  would  have  no 
legal  effect.  The  commission,  section  15,  were  authorized 
to  find  that  a  change  in  rates  of  fares  for  transporting  freight 
or  passengers  was  reasonable  and  expedient,  and  so  inform 
the  corporation  and  the  public,  through  their  annual  report. 
All  the  Western  States,  however,  did  give  such  power. 

As  has  been  said,  no  constitutional  objection  has  been 
sustained  by  the  United  States  Court  as  to  this  delegation 
of  power,  if  it  be  one;  but  in  later  years,  possibly  dissatis- 
fied with  the  conservatism  of  such  boards,  we  find  drastic 
legislation,  particularly  in  the  West  and  South,  fixing  maxi- 
mum rates,  at  least  as  to  passengers  (it  is  obviously  difficult, 
if  not  impossible,  to  enact  express  legislation  as  to  freight 
rates).  Such  legislation  stands  in  as  strong  (or  stronger) 
constitutional  position,  as  rates  made  by  the  commission; 
and  only  fails  when  "confiscatory"  or  when  in  conflict 
with  Federal  legislation.  Perhaps  the  most  notable  clash 
between  the  States  and  the  Federal  power  has  been  on  this 
subject  in  this  very  last  year,  where  State  laws  have  been 
annulled  and  even  high  State  officers  enforcing  them  re- 
strained by  injunction  of  Federal  courts.  Still,  in  the  leg- 
islation of  all  States,  I  find  as  yet  none  overstepping  the 
limits  we  have  above  defined  as  proper. 

The  question  of  the  amount  of  return  required  by  the  court 
is,  of  course,  a  most  important  one.  It  is  a  difficult  subject, 
because  no  fixed  rule  takes  any  account  of  risk  to  the  original 
investment.  It  is  all  very  well  to  say  that  six  or  eight  per 
cent,  is  a  fair  return  on  invested  capital,  or  even  on  "cost 
of  reproduction";  but  when,  as  to  original  promoters,  the 
chance  of  even  any  return  was  as  one  against  ten  of  a  total 
loss,  fifty  per  cent,  of  annual  profit  would  not  be  more  than 


170  POPULAR  LAW-MAKING 

a  "fair  return"!  The  original  Massachusetts  railway  leg- 
islation seems  to  contemplate  that  ten  per  cent,  should  be 
the  normal  return  on  railway  stock,  for  it  provides  that  at 
any  time  the  commonwealth  may  purchase  any  or  all  its 
railroads  upon  the  payment  of  the  cost,  plus  ten  per  cent, 
a  year  profit. 

Other  than  in  railroads,  the  main  fixing  of  rates  has  been 
in  illuminating  gas.  Many  cities  are  permitted  to  legislate 
on  this  point.  In  New  York  it  was  decided  that  they  might 
so  do,  provided  the  gas  company  got  a  fair  return  on  its 
capital,  not  including  the  value  of  its  franchise ;  and  certainly 
it  would  seem  to  be  the  height  of  audacity  to  claim  more. 
Much  as  if  a  boy,  presented  by  his  father  with  hens  and  the 
feed  to  support  them,  were  to  demand  the  capitalization  of 
the  value  of  all  future  eggs  upon  going  out  of  business!  In 
Boston,  intelligent  legislation  was  adopted — based  on  good 
mediaeval  principles — which  allows  dividends  at  a  sliding 
scale  according,  to  the  price  of  gas  to  the  consumer.1  The 
great  reason,  of  course,  of  the  cessation  of  legislative  activity 
on  the  part  of  the  States,  as  to  railway  rates,  has  been  that  the 
great  bulk  of  rates  appertained  to  interstate  commerce,  or 
at  least  must  be  controlled  by  the  rates  of  interstate  com- 
merce; so  only  legislation  as  to  strictly  local  rates  remains. 

The  two  most  important  questions,  aside  from  that  of  an 
actual  extortionate  rate  (which  has  hardly  ever  been  claimed) 
are  that  of  discrimination,  and  of  the  long-and-short-haul 
clause,  which  is  really  a  derivative  of  the  former.  We  have 
found  the  principle  against  discrimination  time-honored  in 
the  common  law;  but  modern  statutes  wisely  recognize  that 
discrimination  only  exists  when  two  persons  or  two  locali- 
ties are  given  different  rates  under  equivalent  circumstances. 
There  has,  therefore,  been  great  dispute  what  these  words, 
"similar  circumstances  and  conditions,"  in  the  Federal  law 
may  mean.  There  is  no  doubt  that  actual  differences  in 

i  It  will  be  remembered  that  the  very  earliest  Statute  of  Bread  and  Ale 
(1266)  established  such  a  sliding  scale. 


THE  RAILWAY  ACT  OF   1910  171 

cost  of  service  make  dissimilar  conditions;  but  does  geo- 
graphical situation,  such  as  is  recognized  in  the  long-and- 
short-haul  clause?  or  still  more,  the  amount  of  business 
offering,  or  the  amount  of  possible  competition  ?  Very  early 
the  Interstate  Commerce  Commission  and  our  legislation 
got  to  the  point  of  recognizing  competition  by  water;  but 
the  competition  of  other  railroads  was  a  thing  harder  to 
recognize.  Many  people  think  they  have  a  right  to  a  fairly 
equivalent  service  at  a  fairly  equivalent  cost  throughout  the 
United  States,  and  that  they  have  a  right  to  all  the  advantages 
of  their  geographical  position.  The  farmers  in  Westchester 
County,  about  New  York,  thought  they  had  undoubted 
reason  to  complain  when  the  rates  on  milk  were  made  the 
same  from  their  farms  to  the  city  as  from  farms  in  Ohio; 
pointing  out,  indeed,  that  they  had  bought  their  farms 
originally,  and  paid  high  prices  for  the  land,  for  the  very  rea- 
son of  its  geographical  situation  close  to  a  great  market.  Yet 
in  our  courts  the  economic  rule  has  usually  prevailed;  al- 
though no  legislation,  so  far  as  I  have  found,  recognizes  such 
differences,  except  under  some  vague  expression  such  as 
service  or  discrimination  "under  like  or  similar  conditions." 
Whether  legislation  will  ever  come  to  the  point  of  recogniz- 
ing the  railroad  man's  shibboleth,  "charge  what  the  traffic 
will  bear,"  is  perhaps  dubious.  And  the  new  Taft  Act,  in 
its  long-and-short-haul  provision,  takes  a  long  step  in  the 
direction  of  geographical  uniformity  and  rigidity  of  rates. 
A  few  examples  of  modern  rate  regulation  may  be  given. 
In  1896  South  Carolina  fixed  a  flat  passenger  rate  of  three 
and  one-quarter  cents  per  mile.  Both  South  Carolina  and 
Virginia  have  empowered  the  railway  or  public  service  com- 
mission to  fix  all  rates,  including  telephone  and  telegraph. 
Passenger  rates  are  now  usually  fixed  at  two  cents  per  mile 
in  the  East,  or  at  two  and  one-half  cents  in  the  South  or 
West.  In  1907  Kansas  and  Nebraska  arbitrarily  reduced 
all  freight  rates  fifteen  per  cent,  on  the  price  then  charged. 
In  1907  there  was  some  evidence  of  reaction;  Alabama,  in 


172  POPULAR  LAW-MAKING 

an  extra  session,  repealed  her  law  enacted  the  same  year 
prescribing  maximum  freight  rates,  substituting  more  mod- 
erate rates  in  seven  "groups"  (which,  however,  may  be 
changed  by  the  railway  commission!),  and  also  enacted  a 
statute  directing  the  commission  and  the  attorney-general 
not  to  enforce  the  earlier  law;  while  the  heavily  penal  Min- 
nesota law  was  declared  unconstitutional  by  the  United 
States  Supreme  Court.  In  the  British  empire  the  power 
to  fix  rates  is,  of  course,  unquestioned;  and  they  are,  as  to 
railways  at  least,  generally  regulated  by  law.  Canada  in 
1903  established  a  railroad  commission,  and  Nova  Scotia 
in  1908  imposed  various  restrictions  as  to  tolls,  still  the 
English  word  for  rates.  So  in  Ontario  and  Quebec  in  1906, 
and  in  Tasmania  in  1901.  In  many  States,  such  as  Vic- 
toria, the  railways  are  owned  by  the  state,  in  which  case, 
of  course,  no  question  as  to  the  right  to  fix  rates  can  arise. 


IX 
TRUSTS  AND  MONOPOLIES 

Legislation  against  combinations  of  properties  to  bring 
about  monopoly,  or  contracts  in  restraint  of  trade,  is  the  last 
field  of  legislation  we  have  to  consider  in  connection  with 
property,  and  possibly  in  the  public  mind  the  most  impor- 
tant. Although  the  law  against  combinations  of  laborers 
rests  upon  much  the  same  principles,  it  is  perhaps  best  to 
give  a  special  chapter  to  combinations  of  property,  leaving 
labor  combinations  to  be  treated  in  that  special  connection. 
The  matter  has  been  written  up  so  voluminously  that  it 
might  be  difficult  to  say  anything  new  upon  the  subject,  yet 
for  that  very  reason  it  may  be  as  well  to  analyze  it  into  its  sim- 
plest elements  at  the  common  law,  and  then  trace  its  recent 
development  in  our  somewhat  unintelligent  statute-making. 
At  common  law,  then,  these  obnoxious  acts  may  be  analyzed 
into  five  definite  heads:  forestalling,  regrating,  and  engross- 
ing— which  have  been  thoroughly  defined  in  an  earlier  chap- 
ter and  the  modern  form  of  which  in  modern  language  might 
be  called  restraining  production  or  fixing  prices,  the  buying 
and  selling  of  futures  or  gambling  contracts,  and  cornering 
the  market — restraint  of  trade,  and  monopoly.  The  broad 
principles,  however,  upon  which  the  gravamen  of  even  these 
first  three  rests,  is  restraint  of  trade,  which  was  always  ob- 
noxious at  the  common  law.  Contracts  in  restraint  of  trade, 
except  such  reasonable  contracts  as  partnership,  or  the  sale  of 
a  business  with  condition  not  to  engage  in  the  same  trade  in  a 
certain  limited  locality  or  for  a  certain  limited  time,  have 
always  been  void  at  the  common  law.  They  are  not,  however, 

173 


174  POPULAR  LAW-MAKING 

criminal  except  by  statute,  though  a  combination  in  restraint 
of  trade,  etc.,  was  always  so.  We  found  many  such  stat- 
utes as  we  also  found  laws  which  gave  a  penalty  in  double  or 
treble  damages  to  the  person  injured  by  such  combination 
or  contract.  The  great  case  of  monopolies,  reported  in  full  in 
the  seventh  volume  of  the  State  Trials,  is  a  perfect  mine  of 
information  on  this  subject,  having  been  argued  many  months 
at  great  length  by  the  greatest  lawyers,  three  of  whom  later 
were  chief -justices  of  England.  This  is  not  the  case  of  the 
playing  cards,  Darcy's  case,  commonly  called  the  "  Monop- 
oly Case,"  which  is  briefly  reported  in  Coke  and  covers  a 
far  narrower  subject,  the  royal  grant  for  a  monopoly  in 
the  importation  (not  manufacture  or  sale)  of  playing  cards, 
presumably  because  Coke's  reports  are  far  more  accessible 
than  the  somewhat  rare  editions  of  the  State  Trials ;  but  the 
great  case  brought  by  the  British  East  India  Company 
against  one  Sandys,  the  loss  of  which  would  have  for- 
feited its  charter  and  its  business,  and  possibly  put  an  end  to 
British  dominion  in  the  East.  Its  charter  dated  from  the 
early  years  of  Charles  II  and  the  43d  Elizabeth.  It  brought 
suit  against  the  defendant,  who  freighted  a  vessel  to  East 
Indian  ports.  Mention  in  it  is  made  of  a  charter  to  the  Mus- 
covy Company  as  early  as  Philip  and  Mary,  a  much  earlier 
date  than  is  elsewhere  assigned  to  trading  corporations.  Hun- 
dreds of  cases  of  unlawful  monopolies  are  cited,  among  them 
the  case  of  the  tailors  of  Norwich,  where  a  combination  to 
work  only  for  certain  wages  and  to  advise  others  not  to  work 
for  less  and  to  prevent  such  others  from  getting  employment 
with  their  own  employer,  was  held  a  conspiracy  and  an  at- 
tempt to  gain  a  monopoly  at  the  common  law.  Another  case, 
of  one  Peachy,  who  had  by  royal  grant  an  exclusive  right  to 
sell  sweet  wine  in  London,  was  held  to  disclose  an  odious 
monopoly  at  common  law  and  the  king's  franchise  void. 

In  the  opinion  of  the  writer,  had  this  common  law  been 
thoroughly  remembered  and  understood  by  our  bench  and 
bar,  to  say  nothing  of  our  legislatures,  very  little  anti-trust 


THE  TRUSTS  AT  COMMON  LAW  175 

legislation  by  the  States  would  have  been  necessary  except, 
again,  of  course,  to  affix  modern  penalties  to  such  offences. 
There  has,  however,  been  a  vast  amount  of  such  legislation. 
In  so  far  as  such  legislation  has  embodied  the  common  law, 
it  has  stood  the  test  of  the  courts  and  been  of  some  value  in 
repressing  objectionable  trusts  or  contracts.  In  so  far  as 
it  has  gone  beyond  the  common  law,  it  has  often  proved 
futile  and  still  more  often  been  declared  unconstitutional 
by  the  courts. 

To  the  five  principles  of  the  common  law  set  forth  above 
we  have,  perhaps,  added  two  new  ones.  Besides  fixing 
prices,  limiting  outputs,  cornering  the  market,  contracting 
in  restraint  of  trade,  and  acting  or  contracting  with  the  pur- 
pose of  gaining  a  monopoly — all  of  which  were  objection- 
able at  common  law — we  have  legislated  in  some  States 
against  the  securing  of  discriminatory  railway  rates  for  the 
purpose  of  establishing  a  monopoly,  and  against  what  we 
have  termed  "unfair  competition" — that  being  generally  de- 
fined to  be  the  making  of  an  artificially  low  price  in  a  certain 
locality  for  the  purpose  of  destroying  a  competitor,  or  the 
making  of  exclusive  contracts;  that  is  to  say,  refusing  to 
deal  with  a  person  unless  he  binds  himself  not  to  deal  with 
anybody  else.  This  last  thing  can  hardly,  however,  be  said 
to  add  to  common-law  principles.  Nevertheless,  some  of 
the  newer  State  anti-trust  statutes  prescribe  it  so  definitely 
that  it  may  be  treated  as  a  modern  invention. 

All  this  legislation  is  extremely  recent.  In  the  writer's 
digest  of  "American  Statute  Law,"  published  in  1886,  I 
find  no  mention  of  trusts  in  this  modern  sense,  though  a 
special  chapter  is  given  to  them  in  volume  II,  published  in 
1892.  The  first  legal  writing  in  which  the  word  was  used 
and  the  rise  of  the  thing  itself  adverted  to  is,  so  far  as  I  know, 
a  contribution  to  the  Harvard  Law  Review,  entitled  "Trusts," 
vol.  I,  page  132;  but  the  trust  then  had  in  mind  was  the  sim- 
ple early  form  of  the  railway  equipment  trust  said  to  have 
been  invented  in  Pennsylvania,  which  was  indeed  copied 


176  POPULAR  LAW-MAKING 

in  the  first  agreement,  so  long  kept  secret,  of  the  Standard 
Oil  Trust;  and  also  the  corporate  stock  trust,  that  is  to  say, 
the  practice  then  beginning  of  persuading  stockholders  to 
intrust  a  majority  of  the  capital  stock  of  the  corporation 
into  the  hands  of  trustees,  receiving  in  return  therefor  trust 
certificates,  with  a  claim  to  the  net  earnings  of  the  corpora- 
tion, but  without  real  voting  power;  and  there  are  cases  in 
which  such  trusts  were  sought  to  be  held  invalid  and  en- 
joined in  equity,  sometimes  with  and  sometimes  without 
success. 

Before  going  into  the  details  of  anti-trust  legislation,  it 
would  be  well  to  sketch  its  history  on  the  broadest  possible 
lines.  Legislation  began  first  in  the  States  some  years  before 
the  Federal  Anti-trust  Law,  or  Sherman  Act,  first  enacted 
in  1890.  These  earlier  statutes,  including  the  Sherman  Act 
itself,  made  illegal  all  contracts  or  combinations  between 
persons  or  corporations  in  restraint  of  trade;  and  their  direct 
result  was  to  compel  the  formation  of  the  gigantic  modern 
trust  as  we  now  understand  it.  Had  the  Sherman  Act,  in- 
stead of  being  called  "An  Act  to  Protect  Trade  and  Com- 
merce Against  Unlawful  Restraints  and  Monopolies,"  been 
entitled  "An  Act  to  Compel  the  Formation  of  Large  Trusts 
by  all  Persons  Engaged  in  Similar  Lines  of  Business/'  it 
would  have  been  far  more  correctly  described  in  its  title. 
For  whereas,  before  this  act  persons  or  corporations  could 
make  contracts  or  arrangements  among  themselves  which 
were  good  and  valid  working  agreements  unless  so  clearly 
monopolistic  as  to  be  held  unreasonable  restraint  of  trade  at 
the  common  law  (which,  indeed,  so  far  as  I  know,  was  never 
done  in  any  American  court),  after  the  Sherman  Act  was 
passed  all  such  contracts,  combinations,  or  arrangements, 
even  when  reasonable  and  proper,  were  made  illegal  and 
criminal.  The  only  escape,  therefore,  was  to  bring  all  such 
persons  and  corporations  in  the  same  trade  together  in  one 
corporation,  and  this  is  precisely  what  we  now  term  a  trust. 
Before  1890,  in  other  words,  a  trust  was  really  an  agreement, 


THE  SHERMAN  ACT  177 

a  combination  of  individuals  or  corporations  usually  resting 
upon  an  actual  deed  of  trust  under  which  the  constituent 
parties  surrendered  their  property  or  the  control  of  their 
property  to  a  central  board  of  trustees;  since  1890  this  kind 
of  trust  has  practically  disappeared  and  been  replaced  by 
the  single  large  corporation,  either  a  holding  company  which 
holds  the  stock  of  all  constituent  companies,  or  under  still 
more  modern  practice,  because  more  likely  to  stand  the  scru- 
tiny of  the  courts,  a  huge  corporation,  with  a  charter  given 
by  the  liberal  laws  of  New  Jersey,  West  Virginia,  or  other 
State,  which  actually  holds,  directly,  all  the  properties  and 
business  of  the  constituent  corporations  or  persons.  The 
modern  question,  therefore,  has  become  really  the  question 
of  the  large  corporation,  its  regulation  and  its  control;  fur- 
ther complicated,  of  course,  by  the  fact  that  hitherto  there 
has  been  no  power  to  control  such  large  corporations  except 
the  very  State  which  creates  them,  which  is  usually  quite 
indifferent  to  their  acts  so  long  as  they  pay  the  corporation 
tax.  It  is  therefore  a  question  not  only  of  the  large  cor- 
poration, but  of  the  powers  of  the  States  over  each  other's 
corporations  and  of  the  Federal  government  over  all.  Until 
the  Northern  Securities  case,  it  was  probably  supposed  that 
a  corporation,  being  an  individual,  could  not  be  guilty  of  a 
criminal  conspiracy,  and  consequently  could  not  in  itself 
offend  against  the  anti-trust  acts.  That  case,  and  more 
recent  decisions  still,  show  a  disposition  of  the  courts  to 
look  behind  the  screen  of  the  fictitious  entity  of  the  corpora- 
tion to  the  merits  and  demerits  of  the  persons  making  it  up, 
and  the  objects  with  which  they  came  together  and  the  meth- 
ods they  continued  to  use. 

The  Federal  statute  was  indeed  necessary  to  this  extent,  that, 
although  the  common  law  was  unquestioned,  as  there  is  no 
Federal  common  law  in  the  absence  of  statute,  and  as  inter- 
state commerce  cannot  be  controlled  by  State  law,  either 
common  or  statute,  it  was  necessary  for  Congress  to  declare 
that  the  principles  of  the  common  law  should  apply  to  inter- 


178  POPULAR  LAW-MAKING 

state  commerce.  It  was  also  doubtless  wise  to  remind  the 
public  of  the  existence  of  this  body  of  law  and  to  affix  definite 
prohibitions  and  penalties.  To  this  extent  the  anti-trust 
legislation,  both  State  and  Federal,  is  fully  justified.  Never- 
theless, it  is  noteworthy  that  the  older  States,  where  both  the 
legislatures  and  the  bar  had  presumably  a  higher  degree  of 
legal  education,  rarely  found  it  necessary  to  enact  statutes 
against  trusts.  There  has  never  been,  for  instance,  any  anti- 
trust law  in  Massachusetts  or  in  Pennsylvania,  or  for  a  long 
time  in  New  York,  for  the  first  statute  of  that  State  against 
trusts  was  made  intentionally  futile  by  being  applied  only 
to  a  trust  which  secured  a  complete — i.  e.,  one  hundred  per 
cent. — monopoly  of  its  trade. 

The  economic  consideration  of  all  such  legislation  we  do 
not  propose  to  consider;  whether  it  was  wise  to  forbid  all 
forestalling,  for  instance — which  at  the  common  law  meant 
buying  at  a  definite  distance  as  well  as  at  a  distant  time; 
that  is  to  say,  a  person  who  bought  all  the  leather  in  Cordova 
was  guilty  of  forestalling  as  well  as  the  person  who  bought 
all  the  sherry  that  was  to  be  made  in  Spain  in  the  ensuing 
year — what  we  call  the  buying  of  futures.  This  is  certainly 
very  unpopular,  and  we  find  most  of  our  States  legislating 
against  it;  yet,  of  course,  many  economists  argue  that  it 
is  only  by  allowing  such  contracts  that  the  price  of  any 
artick  can  be  made  stable  and  a  supply  stored  in  years  of 
plenty  against  years  of  famine.  The  first  historical  example 
of  forestalling  and  engrossing  is  to  be  found  in  the  book  of 
Genesis.  Joseph  was  not,  I  believe,  a  regrator,  but  he  was 
one  of  the  most  successful  forestallers  and  engrossers  that 
ever  existed,  and  made  a  most  successful  corner  in  corn  in 
Egypt;  and  his  case  is  cited  as  a  precedent  in  the  Great  Case 
of  Monopolies  above  mentioned.  James  C.  Carter  tells  us l 
that  all  these  laws  are  contrary  to  modern  principles  and  were 
repealed  a  century  ago.  I  cannot  find  that  such  is  the  case. 
On  the  contrary,  they  were  made  perpetual  in  the  thirteenth 
1 "  Law,  Its  Origin,  History,  and  Function,"  N.  Y.,  1907. 


STATE  LAWS  AGAINST  TRUSTS  179 

year  of  Elizabeth,  and  we  find  perfectly  modern  trust  legisla- 
tion as  early  as  Edward  I,  in  1285.  In  1892  I  find  legislation 
already  in  nineteen  States  and  Territories;  North  Dakota, 
indeed,  having  already  a  constitutional  provision.  Three 
States  at  least,  Kansas,  Michigan,  and  Nebraska,  seem  to 
have  been  before  the  Federal  Act,  their  laws  dating  from  1889; 
while  several  States  have  statutes  in  1890,  the  year  in  which 
the  Sherman  Act  was  enacted.  There  has  hardly  a  year 
passed  since  without  a  good  many  statutes  aimed  against 
trusts,  though  they  have  shown  a  tendency  to  decrease  of  late 
years,  and  it  is  especially  noticeable  that  anti-trust  legislation 
is  apt  to  cease  entirely  in  the  years  following  a  panic,  as  if 
legislatures  had  learned  the  lesson  that  too  much  interference 
is  destructive  of  business  prosperity;  I  find  that  by  1908  just 
about  half  the  States  had  embodied  a  prohibition  of  trusts 
in  their  organic  law.1 

One  of  the  principal  earlier  objects  of  the  trust  was  to 
evade  the  corporation  law.  To-day  they  specially  aim  at 
becoming  a  legal  corporation.  In  like  manner  their  earliest 
object  and  desire  was  to  escape  all  Federal  supervision  and 
interference  by  legislation  or  otherwise;  to-day  they  are 
desirous  of  such  regulation  under  Federal  charters,  for  the 
purpose  of  escaping  the  more  multifarious  and  radical  law- 
making  of  the  forty-six  different  States.  Before  the  Indus- 
trial Commission  in  1897-1900,  all  the  heads  of  the  great 
"trusts" — Rockefeller,  Archbold,  Havemeyer — testified  in 
favor  of  Federal  incorporation;  almost  all  other  witnesses, 
except  one  or  two  New  York  or  New  Jersey  corporation 
lawyers,  against  it. 

In  the  article  in  the  Harvard  Law  Review,  above  referred 
to,  the  writer  suggested  that  the  evil  might  be  cured  by  com- 
pelling trusts  to  organize  as  corporations,  thereby  bringing 
them  under  the  regulation  and  control  that  the  State  exer- 
cises over  corporations.  That  has  come  to  pass,  but  the 

1  These  provisions  will  be  found  digested  in  the  writer's  "  Federal  and  State 
Constitutions,"  pp.  339-341. 


180  POPULAR  LAW-MAKING 

remedy  has  not  seemed  adequate.  In  the  early  Sugar  Trust 
case,  the  New  York  Supreme  Court  decided  that  combinations 
to  sell  through  a  common  agent,  thereby,  of  course,  fixing  the 
price,  with  other  common  devices  for  controlling  the  market 
and  preventing  competition,  were  illegal  at  the  common  law ; 
and  also  that  a  corporation  which,  in  order  to  bring  about 
such  a  combination,  put  all  its  stock  in  the  hands  of  trustees 
or  a  holding  company,  thereby  forfeited  its  charter,  the 
only  result  of  which  decision  was  to  drive  the  Sugar  Trust 
from  its  New  York  charters  to  a  legal  organization  in  the 
State  of  New  Jersey.  It  is  noteworthy  that  one  or  two  of 
the  most  obvious  remedies  for  this  condition  of  things  have 
never  been  employed,  possibly  because  they  would  be  too 
effective.  That  is  to  say,  there  might  be  legislation  that  a 
corporation  should  not  act  out  of  the  State  chartering  it 
— that  a  New  Jersey  corporation,  holding  no  property  and 
doing  no  business  in  New  Jersey,  should  not  be  used  to 
carry  on  business  in  New  York.  We  also  might  have  legis- 
lated, going  back  to  the  strict  principles  of  the  common  law, 
to  forbid  any  corporation,  any  artificial  body,  from  hold- 
ing shares  in  another  corporation.  It  is  doubtful,  to-day, 
whether  this  can  be  done  under  the  common  law,  and  the 
authors  of  the  Massachusetts  corporation  law  refused  ex- 
pressly to  provide  for  it;  on  the  other  hand  the  proposed 
Federal  Incorporation  Act  expressly  validates  it.  We  do, 
however,  begin  to  see  some  legislation  on  this  line  of  ap- 
proach, notably  in  the  case  of  competing  companies,  several 
Western  States  at  least  having  statutes  forbidding  a  corpora- 
tion from  holding  stock  in  such  companies;  and  it  was  one 
of  the  recommendations  of  President  Taft's  recent  message, 
at  least  as  to  railroad  companies  not  holding  half  of  such 
stock. 

It  will  well  repay  us  now  to  make  a  careful  study  of  all 
these  anti-trust  statutes,  for  the  purpose  of  seeing  whether  they 
have  introduced  any  new  principles  into  the  law,  and  also 
in  what  manner  they  express  the  old.  Up  to  two  or  three 


AGRICULTURAL  PRODUCTS  AND  LABOR  UNIONS   181 

years  ago  one  might  have  said  that  not  a  single  case  had  been 
decided  in  the  courts  of  any  State  or  of  the  Federal  govern- 
ment against  trusts  or  combinations,  which  might  not  have 
been  decided  the  same  way  under  common-law  principles 
had  there  been  no  anti-trust  legislation  whatever.  As  is 
well  known,  the  great  exception  to  this  statement  is  the  inter- 
pretation of  the  Federal  Act  by  the  Supreme  Court  of  the 
United  States,  declaring  that  any  contract  in  restraint  of 
trade  was  unlawful  under  it,  although  it  would  have  been 
reasonable  and  proper  at  the  common  law.  Later  indica- 
tions are,  as  President  Taft  has  said,  that  the  courts  will  see 
a  way  to  modify  this  somewhat  extravagant  position  by  re- 
introducing  the  common-law  test,  viz.:  Whether  the  con- 
tract is  done  with  the  purport  (or  effect)  of  making  a  monop- 
oly for  destroying  competition,  or  whether  such  result  is 
trivial  and  incidental  to  a  reasonable  and  lawful  business 
arrangement.  The  earliest  statutes,  those  of  Michigan, 
Kansas,  and  Nebraska,  in  1889,  denounce  the  following 
principles:  "All  contracts,  agreements,  understandings,  and 
combinations  .  .  .  the  purpose  or  object  of  which  shall  be 
to  limit  or  control  the  output,  to  enhance  or  regulate  the  price, 
to  prevent  or  restrict  free  competition  in  production,  or  sale." 
This,  the  Michigan  statute,  merely  states  the  common  law, 
but  goes  on  to  declare  such  contract,  etc.,  a  criminal  con- 
spiracy, and  any  act  done  as  part  thereof,  a  misdemeanor, 
and,  in  the  case  of  a  corporation,  subjects  it  to  forfeiture  of 
its  charter.  The  law  makes  the  exception,  nearly  universal 
in  the  Southern  and  Western  States,  that  this  anti-trust 
legislation  shall  not  apply  to  agricultural  products,  live  stock 
in  the  hands  of  the  producer,  nor  to  the  services  of  laborers 
or  artisans  who  are  formed  into  societies  or  trades-unions— 
an  exception  which,  of  course,  makes  it  class  legislation,  and 
has  caused  the  whole  law  to  be  declared  unconstitutional, 
so  far  as  I  know,  by  the  highest  court  of  every  State  where 
it  has  been  drawn  in  question,  and  under  the  Fourteenth 
Amendment  also  by  the  Supreme  Court  of  the  United  States; 


182  POPULAR  LAW-MAKING 

and  in  this  spirit  President  Taft  has  just  acted  in  prevent- 
ing a  joint  resolution  of  Congress  appropriating  money  to 
prosecute  trusts  from  exempting  labor  unions.  The  Kan- 
sas statute  is  substantially  like  the  Michigan,  but  more 
vague  in  wording  (Kansas,  1889,  257).  It  denounces  ar- 
rangements, contracts,  agreements,  etc.,  which  (also)  tend 
to  advance,  reduce,  or  control  the  price  or  the  cost  to  the 
producer  or  consumer  of  any  productions  or  articles,  or 
the  rate  of  insurance  or  interest  on  money  or  any  other 
service.  The  Maine  law  (Maine,  1889,  266,  1)  is  aimed  only 
against  the  old-fashioned  trust;  that  is  to  say,  the  entering 
of  firms  or  incorporated  companies  into  an  agreement  or 
combination,  or  the  assignment  of  powers  or  stock  to  a  cen- 
tral board,  and  such  trust  certificates  or  other  evidences  of 
interest  are  declared  void.  The  Alabama  statute  of  1891 
is  to  similar  effect. 

The  Tennessee  statute  of  1891  is  about  the  same  as  the 
Kansas  statute  of  1889,  above  referred  to,  except  that  it  adds 
the  words  "which  tend  in  any  way  to  create  a  monopoly," 
and  the  Kansas  statute  makes  trust  certificates  unlawful, 
that  being  still  the  usual  way  of  organizing  a  trust  at  that 
time.  The  Nebraska  law  (Nebraska,  1889,  69)  is  much  the 
same,  except  that  it  also  denounces  combinations,  etc., 
whereby  a  common  price  shall  be  fixed  and  whereby  any  one 
or  more  of  the  combining  parties  shall  cease  the  sale  or  man- 
ufacture of  such  products,  or  where  the  products  or  profits 
of  such  manufacture  or  sale  shall  be  made  a  common  fund 
to  be  divided  among  parties  to  the  combination,  and  goes  on 
to  add  that  "pooling  between  persons,  partnerships,  corpora- 
tions .  .  .  engaged  in  the  same  or  like  business  for  any 
purpose  whatever,  and  the  formation  of  combinations  or 
common  understanding"  between  them  is  declared  unlawful, 
and  the  persons  are  made  liable  for  the  full  damage  suffered 
by  persons  injured  thereby,  and  each  day  of  the  continuance 
of  any  such  pool  or  trust  shall  constitute  a  separate  offence; 
this,  the  doctrine  of  a  continuing  conspiracy,  being  for  the 


MOST  RECENT  LEGISLATION  AGAINST  TRUSTS      183 

first  time  before  the  Supreme  Court  of  the  United  States 
at  the  time  of  writing.  North  Carolina  the  same  year  (N.  C., 
1889,  374)  defines  a  trust  to  be  an  arrangement,  under- 
standing, etc.,  for  the  purpose  of  increasing  or  reducing  the 
price  beyond  what  would  be  fixed  by  natural  demand,  and 
makes  it  a  felony  with  punishment  up  to  ten  years'  imprison- 
ment. Here  for  the  first  time  appears  a  statute  against  un- 
fair competition.  "Any  merchant,  manufacturer  .  .  .  who 
shall  sell  any  .  .  .  goods  .  .  .  for  less  than  actual  cost  for 
the  purpose  of  breaking  down  competitors  shall  be  guilty  of  a 
misdemeanor."  Tennessee  the  same  year  (Tennessee,  1899, 
250)  in  its  elaborate  statute,  which  is  a  fairly  good  definition 
of  the  law,  also  denounces  throwing  goods  on  the  market 
for  the  purpose  of  creating  an  undue  depression,  whatever 
that  may  mean.  In  the  next  year,  1890,  there  were  many 
more  State  statutes,  but  we  should  first  notice  a  simple  law 
of  New  York  forbidding  any  stock  corporation  from  combin- 
ing with  any  other  corporation  for  the  prevention  of  competi- 
tion (N.  Y.,  1890,  564,  7).  The  usual  statute  in  other  States 
of  that  year  is  addressed  against  combinations  to  regulate 
or  fix  prices  or  limit  the  output,  but  Texas  (4847a,  1)  and 
Mississippi  (1890,  36,  1)  have  elaborate  laws,  which,  how- 
ever, add  hardly  any  new  principles  to  the  common  law. 
They  define  a  trust  to  be  a  combination  of  capital,  skill,  or 
acts,  by  two  or  more  persons  or  corporations,  (1)  to  create  or 
carry  out  restrictions  in  trade ;  (2)  to  limit  or  reduce  the  out- 
put, or  increase  or  reduce  the  price;  (3)  to  prevent  competi- 
tion; (4)  to  fix  at  any  standard  or  figure  whereby  its  price  to 
the  public  shall  be  in  any  manner  controlled,  any  article  in- 
tended for  sale,  etc. ;  (5)  to  make  or  carry  out  any  contract  or 
agreement  by  which  they  are  bound  not  to  sell  or  trade,  etc., 
below  a  common  standard  figure,  or  to  keep  the  price  at  a 
fixed  or  graduated  figure,  or  to  preclude  free  or  unrestricted 
competition  among  themselves  or  others,  or  to  pool  or  unite 
any  interest.  To  much  the  same  effect  is  the  statute  of  South 
Dakota  (1890,  154,  1),  but  it  also  denounces  any  combina- 


184  POPULAR  LAW-MAKING 

tion  which  tends  to  advance  the  price  to  the  consumer  of 
any  article  beyond  the  reasonable  cost  of  production  or  man- 
ufacture. The  Louisiana  (1890,  36)  and  New  Mexico  laws 
(1891,  10)  are  aimed  particularly  at  attempts  to  monopolize, 
while  the  Oklahoma  statute  (6620)  was  aimed  only  at  corpo- 
rations, and  the  broad  wording  of  the  Federal  act  passed  this 
year  should  be  noted:  "Every  contract,  combination,  in  the 
form  of  trust  or  otherwise,  or  conspiracy  in  restraint  of  trade 
or  commerce  among  the  several  States  or  with  foreign  na- 
tions, is  hereby  declared  to  be  illegal"  (U.  S.,  1890,647, 1) ;  and 
in  the  second  section:  "Every  person  who  shall  monopolize, 
or  attempt  to  monopolize,  or  combine  or  conspire  with  any 
other  person  or  persons  to  monopolize,  any  part  of  the  trade 
or  commerce  among  the  several  States,  or  with  foreign  nations, 
shall  be  deemed  guilty  under  this  act."  And  in  the  third 
section:  "Every  person  who  shall  make  any  such  contract, 
or  engage  in  any  such  combination  or  conspiracy,  shall  be 
deemed  guilty  of  a  misdemeanor."  The  rest  of  the  legisla- 
tion provides  penalties,  manner,  and  machinery  for  the  en- 
forcement of  these  laws  by  prosecuting  attorneys,  etc.,  with 
a  usual  allowance  to  informants;  and  it  may  be  here  noted 
that  one  great  trouble  has  resulted  from  this  machinery,  for 
it  provided  injunction  remedies  and  dissolution,  which  may 
well  be  too  severe  a  penalty,  and,  furthermore,  dispenses 
with  a  jury  and  throws  unnecessarily  upon  the  court — even 
now,  as  in  the  Standard  Oil  case,  a  distant  high  court  of 
appeal — the  burden  of  determining  a  complicated  and  volu 
minous  mass  of  fact.  Our  ancestors  never  would  have  suf- 
fered such  matters  to  be  adjudged  by  the  Chancellor! 

South  Dakota  has  an  extraordinary  statute  making  the 
agents  for  agricultural  implements,  etc.,  guilty  of  a  criminal 
offence  when  their  principals  refuse  to  sell  at  wholesale  prices 
to  dealers  in  the  State  (S.  D.,  1890,  154,  2).  But  beside  these 
remedies,  there  is  a  frequent  statute  dating  from  the  earliest 
Kansas  act  of  1889,  that  debts  for  goods  sold  by  a  so-called 
trust,  contracts  made  in  violation  of  the  law,  will  not  be  en- 


CONSTITUTIONAL  PROVISIONS  AGAINST  TRUSTS  185 

forced  in  favor  of  the  offending  person  or  corporation.  That 
is  to  say,  the  person  buying  the  goods  of  a  trust  may  simply 
refuse  to  pay  for  them;  and  the  constitutionality  of  this  legis- 
lation has  recently  been  sustained  by  a  divided  opinion  in  the 
Supreme  Court  of  the  United  States.1  The  possession  or  own- 
ership of  trust  certificates  is  in  some  States  made  criminal. 
Corporations  offending  against  the  statute  are  to  have  their 
charters  taken  away,  or,  if  chartered  in  other  States,  to  be 
expelled  from  the  State.  All  contracts  or  agreements  in  vio- 
lation of  any  of  these  statutes  are,  of  course,  made  void. 

There  are  special  statutes  in  Kansas,  Nebraska,  and  North 
Dakota  against  trusts  in  certain  lines  of  business,  as,  for 
instance,  the  buying  or  selling  of  live-stock  or  grain  of  any 
kind. 

In  the  twenty  years  that  have  elapsed  since  this  early  legisla- 
tion there  has  been  considerable  clarifying  in  the  legislative 
mind;  modern  statutes,  and  especially  constitutional  pro- 
visions, stating  the  offence  much  more  concisely,  with  a  sim- 
ple reliance  upon  the  common  law,  leaving  it,  in  other  words, 
for  the  courts  to  define.  The  Southern  State  constitutions 
generally  enact  that  the  legislatures  shall  enact  laws  to  pre- 
vent trusts.  New  Hampshire  says:  "Full  and  fair  compe- 
tition in  the  trades  and  industries  is  an  inherent  and  essential 
right  of  the  people,  and  should  be  protected  against  all  mo- 
nopolies and  conspiracies  which  tend  to  hinder  or  destroy." 
Oklahoma  provides  that  "the  legislature  shall  define  what 
is  an  unlawful  combination,  monopoly,  trust,  act,  or  agree- 
ment, in  restraint  of  trade,  and  enact  laws  to  punish  persons 
engaged  in  any  unlawful  combination,  monopoly,  trust,  act, 
or  agreement,  in  restraint  of  trade,  or  composing  any  such 
monopoly,  trust,  or  combination."  In  Wyoming,  monop- 
olies and  perpetuities,  in  South  Dakota  and  Washington, 
monopolies  and  trusts,  are  "contrary  to  the  genius  of  a  free 
State  and  should  not  be  allowed."  The  constitutional  pro- 
visions of  North  Dakota,  Minnesota,  and  Utah  are  again  a 

i  Continental  Wall  Paper  Co.  v.  Voight,  212  U.  S.  227. 


186  POPULAR  LAW-MAKING 

mere  repetition  of  the  common  law.  The  New  Hampshire 
statute  grants  "all  just  power  ...  to  the  general  court  to 
enact  laws  to  prevent  operations  within  the  State  of  ... 
trusts  .  .  .  ,"  or  the  operations  of  persons  and  corporations 
who  "endeavor  to  raise  the  price  of  any  article  of  commerce 
or  to  destroy  free  and  fair  competition  .  .  .  through  con- 
spiracy, monopoly  or  any  other  unfair  means  to  control  and 
regulate  the  acts  of  all  such  persons."  This  last  clause, 
though  a  clear  statement  of  the  common  law,  would,  of  course, 
render  hopeless  Mr.  Gompers's  crusade  in  favor  of  the  boycott, 
the  object  of  a  boycott  invariably  being  to  control  the  acts 
of  somebody  else.  Alabama  directs  the  legislature  to  pro- 
vide for  the  prohibition  of  trusts,  etc.,  so  as  to  prevent  them 
from  making  scarce  articles  of  necessity,  trade,  or  commerce, 
increasing  unreasonably  the  cost  thereof,  or  preventing  rea- 
sonable competition;  and  to  much  the  same  effect  in  Lou- 
isiana. 

We  may  well  close  this  brief  survey  by  a  study  of  the  vol- 
ume of  such  legislation.  We  have,  for  instance,  in  1890, 
seven  anti-trust  laws;  in  1891,  six;  in  1892,  one;  in  1893, 
eight.  In  1894,  doubtless  as  a  consequence  of  the  panic, 
anti-trust  legislation  absolutely  ceased,  and  in  1895  there  is 
only  one  law,  passed  by  the  State  of  Texas,  its  old  law  having 
been  declared  unconstitutional.  In  1896,  under  the  influ- 
ence of  President  Cleveland's  administration,  we  find  four 
such  statutes,  and  in  1897,  with  reviving  prosperity,  thirteen. 
Still,  we  find  no  new  principle,  except,  indeed,  the  somewhat 
startling  statement  in  Kansas  that  it  is  unlawful  to  handle 
goods  made  or  controlled  by  monopolies.  The  Illinois 
statute  of  that  year  permitted  combinations  as  to  articles 
whose  chief  cost  is  wages  when  the  object  or  effect  is  to  main- 
tain or  increase  wages,  a  qualification  which  led  to  the  whole 
law's  being  declared  unconstitutional.  In  Tennessee  there 
is  a  special  statute  penalizing  combinations  to  raise  the  price 
of  coal,  a  statute  with  good  old  precedents  in  early  English 
legislation.  By  this  time  most  of  the  States  had  adopted 


GROWTH   OF  ANTI-TRUST  LEGISLATION         187 

anti-trust  statutes.  In  1898  we  find  only  one  law,  that  of 
Ohio,  giving  the  same  five-fold  definition  of  the  trust  that 
we  found  above  in  Alabama,  but  it  adds  the  somewhat 
startling  statement  that  "the  character  of  the  combination 
may  be  established  by  proof  of  its  general  reputation  as  such," 
and  again  it  is  made  criminal  to  own  trust  certificates,  with 
double  damages  in  all  cases  to  persons  injured.  A  constitu- 
tional lawyer  might  well  doubt  whether  a  conviction  under 
the  last  half  of  this  statute  would  be  sustained.  In  1899 
eleven  of  the  remaining  States  adopted  anti-trust  laws.  In 
1900  there  is  a  new  statute  in  Mississippi  prohibiting,  among 
other  things,  the  pooling  of  bids  for  public  work,  this  again 
being  a  mere  statement  of  the  common  law,  although  a  law 
which  has  possibly  grown  uncommon  by  being  generally 
forgotten. 

In  1901  there  are  four  statutes,  that  of  Minnesota  also  in- 
cluding a  prohibition  of  boycotts,  and  the  first  piece  of  legis- 
lation upon  the  subject  in  the  old  Commonwealth  of  Mas- 
sachusetts— an  ordinary  statute  against  exclusive  dealing; 
that  is  to  say,  the  making  it  a  condition  of  the  sale  of  goods 
that  the  purchaser  shall  not  sell  or  deal  in  the  goods  of  any 
other  person.  In  1902  both  the  Georgia  and  Texas  laws 
were  declared  unconstitutional  because  they  exempted  agri- 
cultural pursuits.  South  Carolina  has  a  statute  actually 
prohibiting  any  sale  at  less  than  the  cost  of  manufacture, 
doubtless  also  unconstitutional.  In  Ohio  corporations  are 
forbidden  to  own  stock  in  competing  companies.  The  Illi- 
nois anti-trust  act  was  declared  unconstitutional  in  1903, 
while  Texas  amended  its  statute  to  meet  the  constitutional 
objection,  and  followed  South  Carolina  in  prohibiting  the 
sale  of  goods  at  less  than  cost. 

In  1904  there  is  no  anti-trust  legislation.  In  1905  the 
South  Carolina  law  is  held  unconstitutional,  and  in  1906, 
that  of  Montana.  In  1907,  however,  under  the  Roosevelt 
administration,  there  was  a  decided  revival  of  interest,  seven- 
teen States  adopting  new  statutes  or  amendments,  but  still 


188  POPULAR  LAW-MAKING 

I  can  find  no  new  principles.  Kansas  copies  the  Massachu- 
setts statute,  and  Massachusetts  extends  it  to  the  sale  or 
lease  of  machinery  or  tools.  Minnesota  and  North  Caro- 
lina have  interesting  statutes  prohibiting  discrimination  be- 
tween localities  in  the  sale  of  any  commodity.  Most  of  the 
States  by  this  time  have  statutes  compelling  persons  to  give 
testimony  in  litigation  about  trusts  and  exempting  them 
from  prosecution  therefor.  North  Dakota  has  also  a  statute 
prohibiting  unfair  competition  and  discrimination  as  against 
localities,  while  Tennessee  makes  it  a  misdemeanor  to  sell 
any  article  below  cost  or  to  give  it  away  for  the  purpose  of 
destroying  competition.  In  1908  Louisiana  and  Mississippi 
adopted  the  principle  forbidding  discrimination  against  locali- 
ties, and  the  new  State  of  Oklahoma  comes  into  line  with 
the  usual  drastic  anti-trust  statute,  and  we  may,  perhaps, 
conclude  this  review  of  a  somewhat  unintelligent  legislative 
history  by  perhaps  the  most  amusing  example  of  all.  The 
Commonwealth  of  Massachusetts,  which  had  so  far  refrained 
from  unnecessary  legislation  on  this  great  question,  thought 
it  necessary  to  adopt  a  statute  making  void  contracts  tc. 
create  monopolies  in  restraint  of  trade,  which  well  shows 
the  necessity  of  a  legislative  reference  bureau  or  professional 
draftsman,  as  discussed  in  a  later  chapter.  That  is  to  say, 
it  says  literally:  "Every  contract,  etc.,  in  violation  of  the 
common  law  ...  is  hereby  declared  to  be  against  public 
policy,  illegal,  and  void."  As  the  law  of  Massachusetts  is 
the  common  law,  and  always  has  been  the  common  law,  this 
amounts  to  saying  that  a  contract  which  has  always  been 
void  in  Massachusetts  is  now  declared  to  be  void.  But, 
moreover,  on  a  familiar  principle  of  hermeneutics,  it  might 
be  argued  to  repeal  the  whole  criminal  common  law  of  re- 
straint of  trade — doubtless  the  last  thing  they  intended  to  do  1 
As  this  is  a  book  upon  actual  legislation,  it  would  be  out 
of  place  to  attempt  a  serious  discussion  of  the  problem  that 
lies  before  us.  Suffice  it  to  say  that  there  are  three  possible 
methods  of  approaching  the  question,  as  it  is  complicated 


FEDERAL   INCORPORATION  189 

with  the  interstate  commerce  power  of  the  Federal  govern- 
ment. That  is  to  say,  either  to  surrender  this  power  to  the 
States,  at  least  so  far  as  it  may  be  necessary  to  enable  them 
to  regulate  or  prohibit  the  actions  of  combinations  in  the 
States,  even  when  engaged  in  interstate  commerce;  or, 
second,  by  perfecting  the  present  dual  system  and  establish- 
ing Federal  supervision  over  State  corporations  engaged  in 
interstate  commerce  by  way  of  license  and  control;  or, 
third,  the  most  radical  remedy  of  all,  apparently  adopted  by 
the  present  administration,  of  surrendering  entirely  the  State 
power  over  corporations  to  the  Federal  government,  at  least 
as  to  such  corporations  as  might  choose  to  take  advantage 
of  such  legislation.  This  would  result  in  a  centralization 
of  nearly  all  business  under  the  control  of  the  Federal  gov- 
ernment, as  well  as  the  removal  of  the  great  bulk  of  litiga- 
tion from  State  to  Federal  courts.  If  not  carefully  guarded 
it  would  deprive  the  States  not  only  of  their  power  to  tax 
corporations,  but  of  their  ordinary  police  powers  over  their 
administration.  Such  a  radical  step  was  unanimously  op- 
posed by  the  United  States  Industrial  Commission  in  1900, 
and  by  nearly  all  their  expert  witnesses,  and  was  then,  at 
least,  only  favored  by  the  heads  of  the  great  trusts,  Mr. 
Archbold,  Mr.  Rockefeller,  and  Mr.  Havemeyer.1  But 
whichever  way  we  look  at  it,  there  is  no  question  that  the 
problem  of  the  modern  trust  is  that  of  the  corporation,  both 
as  to  what  laws  shall  regulate  such  a  corporation,  and  whether 
they  shall  be  acts  of  Congress,  or  State  statutes,  or  both. 

»  For  the  full  arguments  on  this  most  important  question,  the  reader  may 
be  referred  to  the  article  by  Horace  L.  Wilgus  in  the  Michigan  Law  Review, 
February  and  April,  1904.  and  to  the  writer's  debate  with  Judge  Grosscup, 
printed  in  the  Inter-Nation  Magazine  for  March,  1907. 


CORPORATIONS 

The  earliest  trading  or  business  corporation  in  the  modern 
sense  now  extant  seems  to  have  been  chartered  in  England 
about  the  year  1600,  though  Holt  in  the  monopoly  case  dates 
the  Muscovy  Company  from  1401,  and,  despite  the  Roman 
civic  corporations,  has  really  no  actual  precedent  in  economic 
history;  that  is  to  say,  as  a  phenomenon  under  which  the 
greater  part  of  business  affairs  was  in  fact  conducted.  Whether 
derived  historically  from  the  guild  or  the  monastic  corporation 
of  the  Middle  Ages  is  a  question  merely  of  academic  impor- 
tance, for  the  business  corporation  rapidly  became  a  very 
different  thing  from  either;  and,  indeed,  its  most  important 
characteristic,  that  of  relieving  the  members  of  responsibil- 
ity for  the  debts  of  the  corporation,  is  an  invention  of  very 
modern  times  indeed,  the  first  statute  of  that  sort  having  been 
invented  in  the  State  of  Connecticut,  enacted  in  May,  1818. 
These  early  English  corporations,  such  as  the  Turkey  Com- 
pany, the  Fellowship  of  Merchant  Adventurers,  chartered 
in  1643,  or  the  Hudson  Bay  Company,  usually  gave  a  monop- 
oly of  trade  with  the  respective  countries  indicated,  such 
monopolies  in  foreign  countries  not  being  considered  ob- 
noxious.1 The  wording  of  such  early  charters  follows  sub- 
stantially the  language  of  a  town  or  guild  charter,  and  was 
doubtless  suggested  by  them.  Unfortunately,  it  has  never 
been  the  custom  to  print  corporation  charters  in  the  Statutes 
of  the  Realm,  and  it  is  practically  impossible  to  get  a  sight  of 

1  The  charter  of  the  East  India  Company  was  attacked  on  this  ground 
and  successfully  defended  by  Holt  on  the  ground  that  the  common  law  did 
not  mind  monopolies  in  trade  with  heathens  ! 

190 


EARLY  HISTORY  OF  TRADING  CORPORATIONS    191 

the  original  documents  if,  indeed,  in  many  cases,  they  now 
exist.  So  far  as  I  have  been  able  to  study  them,  they  always 
give  the  right  to  transfer  shares  freely,  with  the  other  great 
right,  perpetual  succession;  but  no  notion  appears,  for  at 
least  two  centuries,  that  the  shareholders  are  relieved  from 
any  of  the  legal  obligations  of  the  corporation. 

In  order  to  understand  this  whole  problem  it  is  necessary 
to  bear  in  mind  certain  cardinal  principles  of  our  constitu- 
tional law.  All  corporations,  with  the  exception  of  national 
banks,  two  or  three  railroad  companies,  and  the  Panama 
Canal,  have  been  and  are  creatures  of  the  State,  not,  as  yet, 
of  the  Federal  government,  which  can  only  create  them  for 
purposes  specifically  delegated  to  it  and  not  merely  for  pri- 
vate profit.  The  power  to  create  corporations  is  essential 
to  sovereignty,  and  the  sovereign  may  decline  to  recognize  all 
but  its  own  corporations.  Under  the  doctrine  of  comity,  such 
corporations  can  act  in  any  other  State  with  all  the  powers 
given  them  in  the  State  where  they  are  created,  except  only 
they  be  expressly  limited  by  a  statute  of  such  other  State. 
They  may,  however,  be  entirely  excluded;  only  not  to  the 
destruction  of  property  rights  once  acquired.  On  the  other 
hand,  corporations  conducting  interstate  commerce  may  not 
be  excluded  or  such  business,  interfered  with  by  State  legis- 
lation. 

The  writer  was  for  four  years  counsel  to  the  Industrial 
Commission  at  Washington  and  one  of  the  commissioners 
appointed  to  draw  the  present  business  corporation  law  of 
Massachusetts.  In  both  such  capacities  he  had  the  advan- 
tage of  hearing  the  expert  opinions  of  many  witnesses.  There 
were  two,  and  only  two,  broad  theories  of  legislation  about 
private  business  corporations:  One  view,  the  older  view, 
that  they  should  be  carefully  limited  and  regulated  by  the 
State  at  every  point,  and  that  their  solvency,  or  at  least  the 
intrinsic  value  of  their  capital  stock,  should,  as  far  as  possible, 
be  guaranteed  by  legislation,  to  the  public  as  well  as  to  their 
creditors  and  stockholders;  and  that  for  any  fraud,  or  even 


192  POPULAR  LAW-MAKING 

defect  of  organization,  the  stockholders,  or  at  least  the  direc- 
tors, should  be  liable.  On  the  other  hand,  the  modern  view, 
that  it  was  no  business  of  the  public  to  protect  investors,  or 
even  creditors,  and  that  the  corporations  should  be  given  as 
free  a  hand  as  possible,  with  no  limitation  as  to  their  size, 
the  nature  of  business  they  are  to  transact,  or  the  payment 
in  of  their  capital  stock.  This  is  the  corporation  problem. 
The  State-and-Federal  problem  may  be  called  that  other 
difficulty  which  arises  from  the  clashing  jurisdictions  of  the 
States  among  themselves  and  with  the  Federal  government, 
their  laws  and  their  courts,  as  to  the  corporations  now  cre- 
ated, particularly  railroads  and  corporations  "engaged  in 
interstate  commerce"  which  may  include  all  the  "trusts," 
if  the  mere  fact  that  they  do  business  in  many  States  makes 
them  so. 

Suppose  you  had  a  world  where  one  man  in  every  ten 
was  gifted  with  immortality  and  with  the  right  not  to  be 
answerable  for  anything  that  he  did.  You  can  easily  see 
that  the  structure  of  society,  at  least  as  to  property,  labor, 
and  business  affairs,  would  be  very  decidedly  altered.  Yet 
this  is  what  really  happened  with  the  invention  of  the  modern 
corporation;  only  we  have  got  completely  used  to  it.  It 
would  be  possible  to  have  got  on  without  any  business  cor- 
porations at  all.  Striking  as  this  may  seem  at  first  thought, 
one  must  remember  that  the  world  got  on  very  well  without 
corporations  for  thousands  of  years,  and  that  it  was  by  a  mere 
historical  accident  and  a  modern  invention  that  the  two  great 
attributes  of  the  corporation,  immortality  and  personal  irre- 
sponsibility, were  brought  about.  All  business  might  still 
be  conducted,  as  it  was  in  the  Middle  Ages,  by  individual 
men  or  by  partnerships,  and  still  we  should  have  had  very 
great  single  fortunes  like  that  of  Jacques  Coeur  in  France,  an 
early  prototype  of  Mr.  J.  Pierpont  Morgan,  or  even  vast 
hereditary  fortunes  kept  in  one  family,  like  the  Fuggers  of 
Augsburg,  and  based  on  a  natural  monopoly — mineral  salt — 
as  is  Mr.  Rockefeller's  upon  mineral  oil.  Yet  as  lives  are 


THE  MASSACHUSETTS  CORPORATION  LAW       193 

short  and  abilities  not  usually  hereditary,  the  great  corpora- 
tion question  of  to-day  would  hardly  have  arisen.  Never- 
theless, it  is  presumed  that  no  one,  not  even  the  greatest 
radical,  would  now  propose  to  dispense  with  the  invention 
of  the  business  corporation  with  limited  liability. 

A  careful  discussion  of  the  two  theories  above  referred  to 
will  be  found  in  pages  1  to  28  of  the  report  of  the  Committee 
on  Corporation  Laws  to  the  legislature  of  Massachusetts, 
of  January,  1903.  The  bill  for  a  business  corporation  law 
recommended  by  this  committee  was  enacted  into  law  with- 
out substantial  change,  and  has  apparently  been  satisfactory 
in  the  six  years  it  has  been  in  force,  as  the  amendments  to 
it,  except  only  as  to  the  system  of  taxation  of  corporations, 
have  been  few  and  trifling.  I  venture  to  quote  from  the  re- 
port referred  to  a  few  of  the  remarks  of  the  commissioners 
upon  the  general  question,  as  it  is  now  out  of  print : 

The  investigations  of  the  committee,  the  results  of  which  have 
been  briefly  summarized,  have  led  to  the  following  conclusions: 

First. — That  the  more  important  provisions  of  the  present  law 
regulating  the  organization  and  conduct  of  business  corporations 
and  the  liability  of  its  stockholders  and  officers  are  unsuited  to 
modern  business  conditions. 

Second. — That  the  restrictions  governing  capitalization  and  the 
payment  of  stock  as  shown  in  the  piecemeal  legislation  enlarging 
the  classes  of  corporations  which  may  organize  under  general  laws 
are  arbitrary  or  impossible  of  execution. 

Third. — That  it  is  a  general  practice  to  organize  under  the  laws 
of  other  States  corporations  to  carry  on  enterprises  which  are 
owned  and  managed  by  citizens  of  Massachusetts,  particularly 
where  a  part  or  all  the  property  is  situated  outside  the  State. 

THEORY   OP  LEGISLATION   RECOMMENDED 

The  history  of  corporations,  as  well  as  the  logic  of  the  case,  shows 
that  there  are  possible  two  general  theories  as  to  the  State's  duty  in 
creating  corporations:  first,  the  old  theory  that,  being  creatures  of 
the  State,  they  should  be  guaranteed  by  it  to  the  public  in  all  par- 
ticulars of  responsibility  and  management;  and  the  modern  quite 
opposite  theory  that,  in  the  absence  of  fraud  in  its  organization  or 


194  POPULAR  LAW-MAKING 

government,  an  ordinary  business  corporation  should  be  allowed 
to  do  anything  that  an  individual  may  do.  Under  the  old  theory 
the  capital  stock  of  a  corporation  was,  in  the  law,  considered  to  be 
a  guarantee  fund  for  the  payment  of  creditors,  as  well  as  affording 
a  method  of  conveniently  measuring  the  interests  of  the  individual 
owners  of  a  corporate  enterprise.  There  resulted  from  this  principle 
not  only  the  fundamental  proposition  that  the  capital  stock,  being  in 
the  nature  of  a  guarantee  fund,  should  be  paid  up  at  its  full  par  in 
actual  cash,  but  all  the  other  provisions  to  protect  creditors  or  other 
persons  having  dealings  with  the  corporation;  such  as,  that  the 
debts  of  a  corporation  should  not  exceed  its  capital  stock — de- 
signed primarily  in  the  interest  of  creditors  and  secondarily  in  that 
of  the  stockholders,  who  were  looked  after  as  carefully  as  if  they 
were  the  wards  of  the  State  when  dealing  in  corporation  matters. 
Under  the  modern  theory,  the  State  owes  no  duty,  to  persons  who 
may  choose  to  deal  with  corporations,  to  look  after  the  solvency  of 
such  artificial  bodies;  nor  to  stockholders,  to  protect  them  from  the 
consequences  of  going  into  such  concerns,  the  idea  being  that,  in 
the  case  of  ordinary  business  corporations,  the  State's  duty  ends 
in  providing  clearly  that  creditors  and  stockholders  shall  at  all  times 
be  precisely  informed  of  all  the  facts  attending  both  the  organiza- 
tion and  the  management  of  such  corporations,  and  particularly 
that  there  should  be  full  publicity  given  to  all  details  of  the  original 
organization  thereof. 

The  committee  has  had  little  hesitation  in  determining  which  of 
these  theories  it  should  adopt.  The  limit  of  capitalization  both  in 
amount  and  in  valuation  to  the  net  tangible  assets  of  the  corporation 
has  unquestionably  had  much  to  do  with  the  arrest  of  corporate 
growth  in  this  commonwealth.  Good-will,  trade-marks,  patents 
may  unquestionably  be  valuable  assets,  which,  under  our  present 
method,  may  not  be  capitalized.  Admirable  as  this  theory  may 
have  been,  of  payment  of  capital  stock  in  full  in  cash,  the  condition 
is  so  easily  avoided  in  practice  that  the  result  is  that  our  existing 
law  promises  a  protection  which,  in  reality,  it  does  not  afford,  and  is 
merely  an  embarrassment  to  those  who  feel  obliged  to  comply  not 
only  with  the  letter  but  with  the  spirit  of  the  law.  It  is  no  longer 
true  that  persons  dealing  with  corporations  rely  upon  the  State 
laws  to  guarantee  their  solvency  or  their  proper  management.  The 
attempts  of  the  commonwealth  to  do  so  by  laws  still  remaining  on 
its  statute  books  result,  as  we  apprehend,  only  in  a  false  sense  of 
security;  and  we  believe  that  the  act  proposed,  while  giving  up  the 
attempt  to  do  the  impossible  thing,  will  really,  by  its  greater  atten- 
tion to  the  details  of  organization  required  to  be  made  public  by  all 


THE  PAYMENT  IN  OF  STOCK  195 

corporations,  result  in  an  advantage  to  stockholders  and  creditors 
more  substantial  than  the  present  partial  attempt  to  enforce  a 
principle  impossible  of  complete  realization  and  which  is,  under 
existing  laws,  easily  evaded. 

It  is  impossible  to  reconcile  or  combine  the  two  systems.  Either 
the  old  theory  must  be  maintained,  under  which  the  State  attempts 
though  vainly  to  guarantee  both  to  stockholders  and  creditors  that 
there  is  one  hundred  dollars  of  actual  value  behind  each  one  hundred 
dollars  of  par  value  of  capital  stock,  or  some  other  system  must  be 
adopted  which,  while  not  being  chargeable  with  the  vagueness  and 
laxity  of  the  newer  legislation  of  other  States,  will  permit  a  share 
of  capital  stock,  although  nominally  one  hundred  dollars  in  value, 
to  represent,  as  the  word  implies,  only  a  certain  share  or  proportion, 
which  may  be  more  or  less  than  par,  of  whatever  net  assets  the 
corporation  may  prove  to  have.  Under  a  system  of  this  sort  the 
State  machinery  will  only  provide  that  the  stockholders  and,  per- 
haps, the  creditors,  may  at  all  times  have  access  to  the  corporation 
records  or  returns  in  such  manner  as  clearly  to  show,  both  at  organ- 
ization and  thereafter,  all  of  the  property  or  assets  of  which  such 
share  of  capital  stock  actually  represents  its  proportion  of  ownership. 

The  question  of  monopoly  the  committee  does  not  conceive  to 
have  been  left  to  its  consideration.  The  limitations  now  existing 
on  the  capitalization  of  business  corporations  are,  no  doubt,  attrib- 
utable to  the  sentiment  which  has  always  existed  against  monopoly, 
but  it  is  clearly  the  policy  of  the  commonwealth,  as  shown  in  its 
recent  legislation,  to  do  away  with  the  attempt  to  prevent  large 
corporations,  simply  because  they  are  large.  Moreover,  it  is  ap- 
prehended that  the  question  of  monopoly,  or  rather  of  the  abuse  of 
the  power  of  large  corporations,  does  not  result  necessarily  from  the 
size  of  corporations  engaged  in  business  throughout  the  United 
States.  In  the  opinion  of  the  committee,  some  confusion  has  been 
created,  in  the  discussion  of  the  form  of  so-called  trust  legislation, 
by  a  failure  to  appreciate  that  its  real  object  is  not  to  protect  the 
investor,  who  can  or  should  learn  to  take  care  of  himself,  or  the 
creditor  who  has  already  learned  to  do  so.  The  real  purpose  of  such 
legislation  is  the  protection  of  the  consumer.  In  other  words,  there 
is  no  reason  for  an  arbitrary  limitation  of  capitalization  unless  it 
can  be  used  as  a  means  of  creating  a  monopoly  which  will  influence 
the  price  of  commodities.  In  the  opinion  of  the  committee,  the 
question  of  capitalization  is  not  a  contributing  factor  in  the  fight 
for  a  monopoly.  The  United  States  Steel  Company  would  have 
no  greater  and  no  less  a  monopoly  of  the  steel  business  if  it  were 
organized  with  one-half  of  its  present  capitalization.  The  Standard 


196  POPULAR  LAW-MAKING 

Oil  Company  has  a  very  conservative  capitalization,  and  yet  it  is 
the  most  complete  monopoly  of  any  industrial  corporation  in  this 
country. 

It  has  not  been  the  intention  of  the  committee  to  draft  a  law 
which  will  be  favorable  to  the  organization  of  large  corporations 
popularly  known  as  "trusts."  Inasmuch  as  the  recommended  law 
requires  taxes  to  be  paid  upon  the  full  value  of  the  corporate  fran- 
chise, which  is,  at  least  to  some  extent,  measured  by  the  amount  of 
capitalization,  there  will  always  be  this  very  potent  reason  for  keep- 
ing capitalization  at  the  lowest  possible  point.  Indeed,  it  is  appre- 
hended that  the  organization  of  a  corporation  large  enough  to  con- 
trol a  monopoly  of  any  staple  article  is  practically  prohibited  by  the 
provisions  of  the  recommended  law  as  to  taxation,  which  will  be 
referred  to  in  greater  detail  in  part  II  of  this  report.  At  all  events, 
it  is  no  better  for  the  State  to  leave  its  citizens  at  the  mercy  of  the 
large  corporations  created  by  other  less  careful  sovereignties,  than 
to  permit  the  organization  of  corporations  adequate  to  the  demands 
of  modern  business  under  its  own  laws,  subject  to  its  own  more 
careful  regulation  and  control.  Under  our  State  and  Federal  sys- 
tem it  is  practically  impossible  for  any  one  State,  by  its  own  laws, 
to  control  foreign  corporations,  but  so  far  as  possible  at  present  the 
committee  has  sought  to  subject  them  to  the  same  safeguards  of 
reasonable  publicity  and  accurate  returns,  both  as  to  organization 
and  annual  condition,  as  the  State  requires  of  its  own  corporations. 
The  simple  requirement  of  an  annual  excise  tax,  based  on  the  capi- 
talization of  such  foreign  corporations,  will  serve  to  bring  them 
under  the  control  of  this  State  and  the  way  will  be  open  for  their 
further  regulation  if  desirable.  This  annual  tax  has  been  levied 
upon  the  same  principle  as  the  corresponding  tax  paid  by  home 
corporations.  The  State  should  impose  no  greater  burden  on  for- 
eign corporations  than  on  its  own,  but  should,  so  far  as  possible, 
subject  them  to  its  own  laws. 

The  recommendations  of  the  committee  have,  therefore,  been 
controlled  by  three  principles,  which  may  be  summarized  as  follows: 

First.— The  relation  of  the  State  to  the  corporation. 

The  committee  would  repeat  its  opinion  that,  so  far  as  purely 
business  corporations  are  concerned,  and  excluding  insurance, 
financial  and  public  service  corporations,  the  State  cannot  assume 
to  act,  directly  or  indirectly,  as  guarantor  or  sponsor  for  any  organ- 
ization under  corporate  form.  It  can  and  should  require  for  itself 
and  for  the  use  of  all  persons  interested  in  the  corporation,  the 
fullest  and  most  detailed  information,  consistent  with  practical 
business  methods,  as  to  the  details  of  its  organization,  the  powers 


CONTROL  OVER  FOREIGN  CORPORATIONS   197 

and  restrictions  imposed  upon  its  stockholders  and  as  to  the  prop- 
erty against  which  stock  is  to  be  or  has  been  issued.  Provision  is, 
therefore,  made  in  the  law  drafted  by  the  committee  for  the  organ- 
ization of  such  corporations  for  any  lawful  purpose  other  than  for 
such  purposes  as  the  manufacture  and  distilling  of  intoxicating 
liquors  or  the  buying  and  selling  of  real  estate  which  it  has  been  the 
consistent  policy  of  the  commonwealth  to  except  from  incorpora- 
tion under  the  general  law.  Any  desired  capitalization  above  a 
minimum  of  one  thousand  dollars  may  be  fixed.  Capital  stock 
may  be  paid  for  in  cash  or  by  property.  If  it  is  paid  for  in  cash,  it 
may  be  paid  for  in  full  or  by  instalments,  and  a  machinery  has  been 
created  for  protecting  the  corporation  against  the  failure  of  the 
subscribers  to  stock  to  pay  the  balance  of  their  subscriptions.  If 
stock  is  paid  for  by  property,  the  incorporators  and  not  the  State 
are  to  pass  upon  its  value.  Before  any  stock,  however,  can  be 
issued  for  property,  a  description  of  the  property  sufficient  for  pur- 
poses of  identification,  to  the  satisfaction  of  the  Commissioner  of 
Corporations,  must  be  filed  in  the  office  of  the  Secretary  of  the 
Commonwealth.  This  document  becomes  a  public  record  and  may 
be  consulted  by  any  one  interested  in  the  corporation.  If  the 
officers  of  a  corporation  make  a  return  which  is  false  and  which  is 
known  to  be  false,  they  are  liable  to  any  one  injured  for  actual 
damages.  If  a  full  and  honest  description  is  made  of  property 
against  which  stock  is  issued,  a  stockholder  cannot  complain  be- 
cause of  his  failure  to  inform  himself  by  personal  examination  or 
investigation  of  the  value  of  the  property  in  which  he  is,  or  contem- 
plates becoming,  an  investor. 

Second. — Duties  of  the  State  in  regulating  the  relations  between 
the  corporation  and  its  officers  and  stockholders. 

The  second  principle  upon  which  the  committee  has  acted  in  its 
specific  recommendations  is  this:  that  the  State  should  permit  the 
utmost  freedom  of  self-regulation  if  it  provides  quick  and  effective 
machinery  for  the  punishment  of  fraud,  and  gives  to  each  stock- 
holder the  right  to  obtain  the  fullest  information  in  regard  to  his 
own  rights  and  privileges  before  and  after  he  becomes  the  owner 
of  stock. 

Upon  this  theory  the  committee  has  recommended  a  law  which 
permits  the  corporation  to  determine  the  classes  of  its  stock  and 
the  rights  and  liabilities  of  its  stockholders.  The  recommended 
law  provides  for  increasing  or  decreasing  the  amount  of  capital 
stock  upon  the  affirmative  vote  of  a  majority  of  its  stockholders. 
For  the  protection  of  a  minority  interest  of  stockholders  it  requires 
a  two-thirds  vote  to  change  the  classes  of  capital  stock  or  their 


198  POPULAR  LAW-MAKING 

voting  power,  to  change  the  corporate  name  or  the  nature  of  the 
business  of  the  corporation,  or  to  authorize  a  sale,  lease,  or  exchange 
of  its  property  or  assets. 

Directors  are  made  liable,  jointly  and  severally,  for  actual  damages 
caused  by  their  fraudulent  acts,  but  no  director  is  made  so  liable 
unless  he  concurs  in  the  act  and  has  knowledge  of  the  fraud.  The 
liability  01  stockholders  is  limited  to  the  payment  of  stock  for 
which  they  have  subscribed,  to  debts  to  employees,  and  in  cases  of 
a  reduction  of  capital  when  they  concur  in  the  vote  authorizing  a 
distribution  of  assets  which  results  in  the  insolvency  of  the  corpora- 
tion. An  attempt  has  been  made  to  give  to  the  stockholder  an 
opportunity  of  securing  for  himself  the  fullest  information  on  all 
points  touching  his  interest. 

Third. — The  relation  of  the  State  to  foreign  corporations. 

The  committee  has  been  guided  upon  this  subject  by  the  theory 
that  the  treatment  of  foreign  corporations  by  the  Commonwealth 
should,  so  far  as  practicable,  be  the  same  as  of  its  own,  particularly 
so  far  as  concerns  the  liabilities  of  officers  and  stockholders,  the 
statements  filed  with  the  State  authorities  for  the  information  of 
stockholders  or  others  as  to  their  capitalization  and  the  methods 
adopted  of  paying  in  their  stock,  and  the  annual  reports  of  condi- 
tion required  for  taxation  purposes  or  otherwise.  On  the  same 
principle  a  nominal  franchise  tax  is  annually  imposed  corresponding 
to  the  tax  imposed  by  the  State  on  its  own  corporations  and  made 
approximately  proportional  in  amount. 

A  few  broad  general  principles  are  almost  universal  in 
American  legislation  on  the  subject.  Ordinary  business 
corporations  are  now  almost  universally  created  under  gen- 
eral law,  and  indeed  by  the  constitutions  of  many  States 
are  forbidden  to  be  created  by  special  charter.1  There  is 
generally,  however,  no  limitation  by  constitution  on  the 
size  or  capitalization,  though  the  duration  of  corporations  is 
frequently  limited  to  twenty,  thirty,  or  fifty  years ;  and  there 
is  generally  no  limitation  on  the  nature  of  the  business  that 
may  be  done,  except,  in  a  large  number  of  States,  banking 
and  insurance,  and  except  that  there  is  in  many  States,  as, 
notably,  Massachusetts,  a  prejudice  against  land  companies, 
so  that  they  may  not  be  created  without  a  special  charter. 

'See  Stimson's  "Federal  and  State  Constitutions,"  pp.  295,315,316. 


CONTROL  OVER  FOREIGN  CORPORATIONS   199 

The  liability  of  stockholders  is  commonly  limited  to  the  shares 
of  stock  actually  held  or  such  portion  of  them  as  may  not  have 
been  paid  up  by  the  stockholder  in  cash  or  property  value. 
Massachusetts  and  the  more  conservative  States  attempt  to 
provide  that  the  stock  shall  be  actually  paid  up  in  money  or 
in  property  of  the  real  value  of  money,  at  par.  New  Jersey, 
New  York,  Maine,  West  Virginia,  and  the  laxer  States, 
practically  allow  their  directors  to  issue  stock  for  anything 
they  choose — labor,  contracts,  property,  or  a  patent  right — • 
and  their  judgment  on  the  value  of  such  property  is  held 
to  be  final  in  the  absence  of  fraud.  Corporations  are  usually 
taxed,  like  individuals,  on  their  tangible,  visible  property, 
real  and  personal,  and  in  many  States  there  is  also  a  franchise 
tax  on  their  shares.1  There  is  a  frequent  limitation  that  the 
corporate  indebtedness  shall  not  exceed  the  amount  of  the 
capital  stock.2  No  States,  except  Vermont  and  New  Hamp- 
shire, seem  now  to  have  any  limitation  on  the  amount  of  the 
capital  stock,  or  if  there  be  a  limitation,  as  of  one  million 
dollars  at  the  time  of  formation,  the  corporation  may  subse- 
quently increase  its  stock  to  any  amount.3  Michigan,  how- 
ever, had  a  limitation  of  five  million  dollars  as  to  manu- 
facturing or  mercantile  corporations,  and  two  million  five 
hundred  thousand  dollars  as  to  mines;  while  Alabama  and 
Missouri  had  a  general  limit  of  ten  million  dollars.  The 
general  tendency  is  clearly  to  have  no  limitation  whatever. 
Commonly  only  a  nominal  proportion  of  the  capital  stock 
is  to  be  paid  in  before  the  company  begins  business,  but  the 
stockholders  are  always  liable  to  creditors  for  the  amount 
unpaid.  As  already  remarked,  stock  may  usually  be  paid 
up  in  property,  labor,  or  services,  or,  indeed,  any  legal  con- 
sideration; and  though  most  States  provide  that  such  prop- 
erty, etc.,  shall  be  taken  at  its  actual  cash  value,  such  laws, 
except  in  Massachusetts,  are  not  believed  to  be  effectual. 

1  A  valuable  report  on  this  subject,  brought  down  to  1903,  prepared  by 
F.  J.  MacLeod,  of  Massachusetts,  will  be  found  in  the  "  Report  of  the  Commit- 
tee on  Corporation  Laws,"  above  referred  to,  at  pp.  207-295. 

*  MacLeod,  pp.  165-166.  3  MacLeod,  p.  169. 


200  POPULAR  LAW-MAKING 

That  stockholders  are  individually  liable  to  the  extent  of 
the  unpaid  balance  on  their  stock  is  merely  a  statutory  state- 
ment of  the  ordinary  rule  in  equity.  It  is,  therefore,  law 
without  statute.  Apparently  only  Indiana  and  Kansas  now 
impose  a  double  liability,  the  law  in  Ohio  having  been 
recently  altered  by  constitutional  amendment.  In  several 
States,  however,  they  are  liable  for  debts  due  for  labor; 
in  California  they  are  absolutely  liable  for  such  proportion  of 
all  liabilities  of  the  corporation  as  their  stock  bears  to  the 
total  capital  stock,  while  in  Nevada  they  are  expressly  ex- 
empted from  any  liability  whatever. 

We  can  trace  two  other  decided  tendencies  in  recent  leg- 
islation about  corporations.  First,  the  increasing  effort  to 
bring  about  publicity  of  all  such  matters  as  well  as  of  the 
annual  books  and  accounts,  Well  exemplified  in  the  Massa- 
chusetts statute;  second,  the  usual  strong  prohibitions  against 
consolidations  to  permit  trusts  or  contracts  to  further  mo- 
nopoly. There  has  also  been  a  still  more  recent  line  of 
legislation  to  prevent  corporations  from  holding  stock  in 
other  corporations,  or,  at  least,  in  competing  companies; 
and  to  prevent  alien  corporations  from  holding  land.1  Under 
the  strict  common  law  no  corporation  could  own  or  hold 
stock  in  another  corporation  or  in  itself.  This  has  been 
completely  departed  from  in  practice  in  this  country,  and 
though  not  affirmatively  recognized  in  most  statutes — the 
Massachusetts  statute,  for  instance,  carefully  avoids  provid- 
ing that  the  corporation  may  own  stock  in  other  companies — 
yet  the  practice  has  been  universally  ratified  by  the  courts, 
if  not  by  the  implications  of  legislation.  This  new  tendency 
to  forbid  it  therefore  is  merely  a  return  to  common-law 
doctrine.  Thus,3  in  1903  only  five  States— Connecticut, 
Delaware,  Maine,  New  Jersey,  and  Pennsylvania — provided 
generally  that  a  corporation  might  own  stock  in  another  corpo- 
ration; two  States — Indiana  and  Minnesota — so  provided  as 
to  manufacturing  or  mining  companies.  In  New  York, 

See  below,  chap.  16.  2  MacLeod,  p.  203. 


CORPORATION  LAWS  OF  ALL  THE  STATES      201 

Ohio,  and  other  States,  a  corporation  could  only  own  stock 
in  another  corporation  engaged  in  a  similar  business,  or  a 
business  useful  or  subsidiary,  or  in  a  corporation  (New 
York)  with  which  it  was  legally  entitled  to  consolidate ;  but 
the  tendency  of  recent  legislation  is  precisely  opposite  on  this 
point,  forbidding  stockholding  by  all  corporations  in  simi- 
lar or  competing  companies,  or  more  specifically  forbidding 
stockholding  in  similar  or  competing  companies,  as  well  as 
stockholding  by  railroads  in  railroad  companies. 

The  practice  of  permitting  the  free  holding  of  stock  by 
corporations,  and  especially  by  holding  corporations,  has 
been  undoubtedly  harmful  to  the  public,  and  to  the  public 
morals,  and  has  been  the  main  cause  making  possible  the 
speedy  acquisition  of  immense  private  fortunes.  The  stock- 
holding trust  or  the  device  by  which  (as  in  the  Rock  Island 
Railway  system)  a  corporation  is  created  for  the  purpose  of 
holding  half  the  stock  of  the  real  corporation  and  then  pos- 
sibly a  third  corporation,  still  to  hold  half  the  stock  in  the 
second,  each  of  them  parting  with  the  other  half,  obviously 
makes  possible  the  control  of  immense  properties  by  persons 
having  a  comparatively  small  real  interest.  It  is  a  mere 
arithmetical  proposition,  for  instance,  in  the  case  mentioned, 
that  whereas  in  one  corporation  it  takes  one-half  of  the  stock 
to  control  it,  the  first  holding  company  will  enable  it  to  be  con- 
trolled by  one-fourth  and  the  second  by  one-eighth  of  the  origi- 
nal stock.  Legislation  should  properly  be  much  more  drastic 
on  this  point;  but  indeed  our  whole  corporation  legislation 
seems  rather  to  have  been  drawn  by  able  lawyers  with  a  view 
of  protecting  the  corporation  or  the  person  who  profits  by  the 
abuse  thereof,  than  with  a  real  desire  to  apply  intelligent  and 
practicable  remedies  to  the  situation.  Thus,  until  very  recently, 
if  now,  there  has  been  no  legislation  along  this  great  line  of 
preventing  the  holding  and  governing  of  corporations  by  such  a 
system  of  Chinese  boxes ;  nor  has  there  been  up  to  date  any 
legislation  whatever  along  the  other  great  line  of  excluding 
objectionable  corporations  from  doing  business  in  the  State, 


202  POPULAR  LAW-MAKING 

which  any  State  has,  except  as  to  interstate  commerce  corpo- 
rations, the  unquestioned  right  to  do.  This  right  will,  of  course, 
disappear  entirely  if  the  recommendation  of  the  present  ad- 
ministration for  a  general  Federal  corporation  law  be  adopted. 
The  invention  of  the  corporate  share  enables  a  clever  few  to 
control  the  many;  a  small  minority  to  control  the  vast  bulk  of 
the  real  interest  of  all  property  in  the  country;  the  problem 
has  obviously  proved  too  great  for  popular  intelligence,  for 
so  far  little  real  legislation  in  the  people's  interest  has  been 
effected.  Like  most  ancient  popular  prejudices,  however, 
the  blind  instinct  against  corporations,  common  among  our 
Populists,  has  a  strong  historical  basis;  it  comes  directly 
down  from  the  prejudice  against  Mortmain,  the  dead  hand, 
and  from  that  against  the  Roman  law ;  for  corporations  were 
unknown  to  the  common  law,  and  legislation  against  Mort- 
main dates  from  Magna  Charta  itself.1 

It  would  perhaps  be  possible  for  Congress  to  pass  an  act 
forbidding  any  corporation  to  carry  on  its  business  outside 
of  the  State  where  it  is  chartered,  unless,  of  course,  it  got 
charters  from  other  States;  certainly  the  States  themselves 
might  do  so.  This  remedy  also  has  never  been  tried,  and 
hardly,  in  Congress,  at  least,  been  suggested.  Yet  it  were 
a  more  constitutional  and  far  safer  thing  to  do  than  to  cut 
the  Gordian  knot  by  a  Federal  incorporation  act,  which 
will  forever  securely  intrench  the  trusts  against  State  power. 
Even  if  New  Jersey  or  the  Island  of  Guam  goes  on  with  its 
lax  corporation  laws,  permitting  its  creatures  to  do  business 
all  over  the  land  without  proper  regulation,  this  power  could 
thus  be  instantly  taken  away  from  it  by  such  an  act  of  Congress, 
even  if  the  States  themselves  remained  unready  or  unwilling 
to  act.  Then  no  corporation  could  be  "  chartered  in  New 
Jersey  to  break  the  laws  of  Minnesota,"  even  if  Minnesota 
permitted  it. 

Trusts  started  as  combinations  and  ended  as  corporations. 

1  The  legislation  against  trusts,  as  it  existed  up  to  1900,  will  be  found  at 
the  back  of  vol.  II  of  the  "  Reports  of  the  United  States  Industrial  Commis- 
sion." 


"HOLDING"  COMPANIES  AND   "TRUSTS"         203 

They  began  as  State  corporations,  subject  both  to  State  and 
Federal  control  and  regulation;  they  may  end  as  Federal 
corporations  subject  to  no  control  except  by  Congress.  It 
is  too  early  yet  to  predict  the  result,  but  one  assertion  may 
be  hazarded,  that  just  as  the  original  Sherman  Act  against 
trusts  compelled  the  formation  of  trusts,  so  this  proposed 
Federal  legislation  will  compel  the  formation  of  Federal 
trusts,  by  all  but  the  most  local  of  business  corporations. 

As  to  public-service  corporations,  both  the  legislation  and 
the  principle  on  which  it  rests  are,  of  course,  quite  different. 
There  is  no  serious  difference  of  opinion  that  the  stock  should 
be  paid  up  in  actual  money  at  par  nor  that  dividends  at  the 
expense  of  the  public  should  not  be  paid  on  watered  stock. 
More  and  more  the  States  are  putting  this  sort  of  legislation 
into  effect.  There  is  also  the  general  provision  discussed 
in  a  former  chapter  that  the  rates  or  charges  of  all  such  cor- 
porations may  be  regulated  by  law  or  ordinance;  and  by  far 
the  most  notable  trend  of  legislation  in  this  particular  has 
been  that  franchises  of  corporations  should  be  limited  in 
time  and  should  be  sold  at  auction  to  the  highest  bidder. 
Thus,  by  a  California  law  of  1897,  all  municipal  franchises 
must  be  sold  for  not  less  than  three  per  cent,  of  the  gross 
receipts  and  after  a  popular  vote  or  referendum  on  the  ques- 
tion. It  has  been  matter  of  party  platform  for  some  years 
that  all  franchises  should  thus  be  submitted  to  the  local 
referendum.  That  is,  all  exclusive  franchises  whereby  rights 
in  the  streets,  or  other  rights  of  the  public,  are  given  away 
to  a  corporation  organized  for  purposes  of  gain.  In  Louisi- 
ana, street  railway  franchises  may  only  be  granted  on  peti- 
tion of  a  majority  of  the  abutters,  and  must  be  sold  at  auction 
for  the  highest  percentage  of  gross  receipts,  and  so  substan- 
tially in  South  Carolina.  In  Washington,  an  elaborate 
statute  against  discrimination  by  public-service  corporations 
was  passed  by  the  initiative;  but  as  the  statute  itself  omitted 
the  enacting  clause  the  law  has  been  held  to  be  of  no  effect. 
Lastly,  we  will  note  as  the  most  recent  tendency,  a  more  in- 


204  POPULAR  LAW-MAKING 

telligent  limitation  by  the  States  themselves  of  corporations 
organized  in  and  by  other  States,  frequently  denying  to  such 
the  right  of  eminent  domain  or,  as  in  Massachusetts,  to  do 
business  or  make  contracts  without  making  full  annual  re- 
turns and  submitting  in  all  respects  to  the  State  jurisdiction. 
Under  recent  decisions  of  the  Supreme  Court,  however,  this 
power  does  not  extend  to  any  corporation  doing  an  interstate 
commerce  business;  and,  of  course,  under  the  Federal  In- 
corporation Act,  proposed  by  the  present  administration,  the 
States  would  be  completely  deprived  of  such  power,  except, 
possibly,  in  so  far  as  Congress  may  choose  to  relinquish  it 
to  them.  How  far,  independent  of  such  permission  by  Con- 
gress, the  ordinary  police  power  would  extend,  it  will  be 
almost  impossible  to  define. 


XI 
LABOR  LAWS 

Much  of  the  law  affecting  employers  or  combinations  of 
capital  has  its  correlative,  or  rather  equivalent,  in  com- 
binations of  labor;  but  leaving  the  matter  of  combinations 
for  the  next  chapter,  and  reserving  for  this  only  statutes 
affecting  the  individual,  we  must  again  insist  upon  that 
great  cardinal  liberty  of  labor  under  the  English  common 
law,  which  already  gives  it  a  certain  privilege  and  dispenses 
it  from  the  laws  affecting  ordinary  contracts,  that  is  to  say: 
the  contract  of  labor,  alone  of  contracts  under  the  English 
law,  may  not  be  enforced.  When  we  say  "enforced"  we  of 
course  mean  that  the  laborer  may  not  be  compelled  to  carry 
it  out;  what,  in  the  law,  we  call  specific  performance.  This 
is  a  matter  of  such  essential  importance  that  it  cannot  be  too 
strongly  accentuated,  as  it  is  surprising  how  ignorant  still 
the  popular  mind  is  upon  this  subject,  how  little  it  realizes 
labor's  peculiar  advantage  in  this  particular.  But  it  has 
always  been  true  of  the  English  and  American  law,  at  least 
since  that  early  labor  legislation  sketched  above  in  chapter  4 
which  came  to  a  final  end  at  least  as  early  as  Elizabeth,  that 
no  man  could  be  compelled  to  work — except,  of  course,  by 
way  of  punishment  for  crime — and  more  than  that,  he  could 
not  even  be  compelled  to  work  or  carry  out  a  specific  contract 
of  labor  to  which  he  had  bound  himself  by  all  possible  for- 
mality. "Specific  performance"  is  the  peculiar  process  of 
a  court  of  chancery,  and  at  this  point  the  resistance  of 
the  freemen  of  England  we  have  traced  in  earlier  chapters 
became  absolutely  effectual;  that  is  to  say,  the  court  of 
chancery  was  never  allowed  to  extend  its  strong  arm  over 

205 


206  POPULAR  LAW-MAKING 

the  labor  contract.  Even  that  famous  first  precedent  of 
"government  by  injunction"  discussed  by  us  above  (page 
74)  was  resisted  in  early  times,  the  precedent  was  not  fol- 
lowed, it  fell  into  complete  desuetude,  and  it  remained  for 
the  case  of  Springhead  Spinning  Company  v.  Riley,1  decided 
as  late  as  1868,  to  extend  the  injunction  process  to  the  pro- 
hibition of  a  strike.  And  in  more  recent  labor  cases  it  has 
been  found  that  the  line  between  prohibiting  a  man  from 
leaving  his  employment,  even  under  peculiar  circumstances, 
and  ordering  him  to  proceed  with  his  contract  of  employment 
and  to  carry  it  out,  is  extremely  fine,  if  not  indistinguishable.2 

Now,  the  reason  of  this  great  principle  (peculiar,  I  think, 
to  Anglo-Saxon  law)  lies  at  its  very  root.  It  is  the  principle 
of  personal  liberty  again.  To  English  notions,  and  to  Eng- 
lish courts,  indefinite  labor  continued  for  an  indefinite  time, 
or  applied  to  an  indefinite  number  of  services,  is  indistin- 
guishable from  slavery;  and  compulsory  labor  even  under  a 
definite  labor  contract,  such  as  to  work  for  a  week  or  a  month 
or  a  year,  or  in  limited  directions,  as,  for  instance,  to  work 
at  making  shoes  or  weaving  cloth,  when  enforced  by  the 
strong  arm  of  the  law,  smacked  too  much  of  slavery  to 
be  tolerable  by  our  ancestors.  Thus  it  is  that,  alone  of 
all  contracts,  if  a  man  sign  an  agreement  to  work  for  us 
to-day,  he  may  break  it  to-morrow  and  will  not  be  com- 
pelled to  perform  it;  our  only  redress  is  to  sue  him  for 
damages,  and  this  again  because  we  can  only  act  under  the 
common  law.  Chancery  at  this  point  at  least  is  forbidden 
to  take  cognizance  of  matters  affecting  personal  liberty  and 
labor;  and  the  common  law,  as  has  been  said,  " sounds  only 
in  damages."  It  is  only  chancery  that  can  compel  a  man 
to  do  or  not  to  do  some  thing  or  to  carry  out  a  contract. 

The  other  basic  principle  affecting  all  questions  of  labor 

>  L.  R.  6  Eq.  551. 

2  For  instance,  the  injunction  against  the  employees  of  the  Southern 
California  Railroad  requiring  defendants  to  perform  all  their  regular  and 
accustomed  duties  "so  long  as  they  remain  in  the  employment  of  the  com- 
pany" (62  Fed.  796),  has  always  been  severely  criticised. 


FREEDOM  TO  TRADE  AND  LABOR  207 

law  is  that  of  freedom  of  trade  or  labor,  correlative  to  the 
principle  of  freedom  of  contract  as  to  property  right,  and, 
indeed,  embodying  that  notion  also.  That  is  to  say  (perhaps 
I  should  say,  to  repeat)  that  an  Englishman,  an  American, 
has  a  right  to  labor  where  and  for  whom  and  at  what  he  will, 
and  freely  to  make  contract  for  such  labor,  and  freely  to 
exercise  all  trades,  and  not  to  be  combined  against  by  oth- 
ers, or  competed  with  by  a  monopoly  favored  by  the  state. 
These  last  two  clauses,  of  course,  belong  to  our  next  chapter. 
This  right  of  contract  is  not  peculiar  to  the  English  law,  as 
is  the  right  not  to  be  compelled  to  personal  service,  and  is 
much  better  understood;  though  it  is  still  earnestly  argued 
by  many  advocates  of  union  labor  that  there  is  no  real  free- 
dom of  contract,  or,  at  least,  equality  of  contract,  between 
the  employer  and  the  employee;  that  therefore  "collective 
bargaining"  should  be  allowed,  and  that  therefore,  and 
furthermore,  the  wiser  or  the  better  organized  should  be 
permitted  to  combine  to  control  the  contract  or  the  labor  of 
the  individual.  But  if  we  hold  thoroughly  these  two  prin- 
ciples before  our  mind  we  shall  have  the  key  to  the  under- 
standing of  our  labor  legislation;  and  if  we  add  to  that  the 
third  principle  against  conspiracy,  we  shall  have  the  key  to 
our  more  complicated  legislation  against  trusts  and  black- 
lists and  boycotts,  and  to  an  understanding  of  the  more 
difficult  questions,  affecting  labor  in  combination  and  the 
regulation  of  labor  unions. 

That  there  has  been  a  vast  deal  of  interference,  or  at- 
tempted interference,  with  these  principles  in  modern  Amer- 
ican legislation  goes  without  saying.  The  motive  or  force 
behind  such  legislation  has  pretty  clearly  two  sources:  First, 
the  behest  or  desire  of  the  "Labor  interest"  or  organized 
labor,  the  trades-unions  themselves;  and  when  we  analyze 
these  and  their  constituents  we  shall  find  that  it  really  means 
only  mechanical  or  industrial  labor,  not  farm  or  agricul- 
tural labor  (which  is  still  in  numbers  the  greatest  body  of 
labor  in  the  United  States),  nor,  as  yet.  domestic  service 


208  POPULAR  LAW-MAKING 

labor,  nor  what  the  census  calls  "personal  service,"  which 
is  probably  next  in  numerical  importance,  nor  clerks;  it  is  a 
comparatively  small  class  in  numbers,  this  class  of  skilled 
mechanical  or  manufacturing  labor,  that  has  brought  about 
this  immense  mass  of  legislation  of  our  modern  States  aimed 
at  improving  their  own  labor  conditions;  and  which  there- 
fore, necessarily  perhaps,  interferes  with  personal  liberty  as 
to  the  labor  contract,  or,  at  least,  seeks  to  regulate  it. 

The  other  great  influence  is  rather  a  motive  than  a  source; 
we  may  call  it,  for  want  of  a  better  word,  the  sentimental 
or  the  altruistic  motive — the  moral  motive;  the  forces  be- 
hind it  being  mainly  of  a  religious  or  moral  origin,  philan- 
thropists, students  of  ethics,  and  recently,  to  a  great  extent, 
the  women  and  the  women's  clubs.  The  activity  of  these 
great  forces  may  be  clearly  traced  through  the  nineteenth 
century.  It  first  belonged  to  the  antislavery  movement,  which 
directly  and  historically  led  to  the  women's  suffrage  move- 
ment, owing  to  the  fact  that  at  a  great  antislavery  conven- 
tion in  England  a  woman  delegate  was  refused  a  seat  upon 
the  platform,  while  her  husband,  a  comparatively  obscure 
person,  was  recognized  as  the  leading  representative  from 
America;  and  ending  of  late  years  in  the  prohibition  move- 
ment, to  regulate  or  prohibit  the  trade  in  intoxicating  liquors, 
and  to  exclude  the  canteen  from  the  army.  But  in  the  latest 
years,  in  these  last  very  few  years  indeed,  the  forces  of  this 
category  have  devoted  a  large  proportion  of  their  "categor- 
ical imperative"  to  labor  conditions  and  the  labor  contract. 

These  great  forces  are  entirely  impatient  of  constitutional 
principles  and  somewhat  indifferent  as  to  the  law,  while 
always  very  desirous  of  making  new  statutes  themselves. 
But  their  combined  influence  is  enormous,  so  much  so  that 
almost  any  cause  to  which  they  devote  themselves  will  in 
the  long  run  succeed;  unless,  indeed,  their  attention  is  di- 
verted to  some  other  need,  for  it  may  be  suggested  that 
they  are  somewhat  fickle  of  purpose.  For  example,  their 
success  in  the  antislavery  movement  makes  the  American 


SOURCES  OF  REFORM  LEGISLATION  209 

history  of  the  nineteenth  century;  in  the  prohibition  move- 
ment they  were,  in  the  middle  decades  of  that  century, 
almost  entirely  successful,  and  while  apparently  there  was 
a  set-back  in  the  twenty  years  of  individualistic  feeling  which 
marked  the  growth  of  the  Democratic  party  to  an  equality 
with  its  great  rival,  the  movement  of  late  years  seems  to  have 
taken  on  renewed  strength,  probably  on  account  of  the  so- 
called  negro  question  in  the  South.  And  while,  as  to  votes 
for  women,  they  seem  to  have  made  no  progress  beyond  the 
adoption  twenty  years  ago  of  women's  suffrage  in  four  new 
Western  States  and  Territories,  this  last  year,  it  must  be 
admitted,  the  movement  has  taken  on  a  new  strength  in 
sympathy  with  the  agitation  in  England.  There  are  now 
already  symptoms  of  a  fourth  cause — the  reform  of  mar- 
riage, divorce  and  the  laws  regulating  domestic  relations, 
and  the  control  of  children.  It  is  possible  that  these  mat- 
ters will  be  taken  up  actively  in  coming  decades,  and  we, 
therefore,  reserve  them  for  a  future  chapter;  this  new  effort 
is  itself  partly  bound  up  with  the  women's  suffrage  move- 
ment, and  in  its  latest  manifestation — that  of  proposing 
legislation  preventing  men  from  marrying  without  permis- 
sion from  the  state — it  is  a  most  picturesque  example  of  that 
absence  of  constitutional  feeling  we  have  just  adverted  to. 

Now  this  freedom-of-contract  principle  is  one  which,  of 
course,  legislation  attempting  to  regulate  the  labor  contract 
is  peculiarly  liable  to  "run  up  against";  and  it  is,  for  this 
reason,  not  only  or  chiefly  because  "labor"  is  opposed 
to  the  Constitution  or  because  the  courts  are  opposed  to 
"labor,"  that  so  many  statutes,  passed  at  least  nominally  in 
the  interest  of  labor,  have  been  by  them  declared  unconsti- 
tutional. For  instance,  it  is  a  primary  principle  that  an  Eng- 
lish free  man  of  full  age,  under  no  disability,  may  control 
his  person  and  his  personal  activities.  He  can  work  six,  or 
four,  or  eight,  or  ten,  or  twelve,  or  twenty-four,  or  no  hours 
a  day  if  he  choose,  and  any  attempt  to  control  him  is  impos- 
sible under  the  simplest  principle  of  Anglo-Saxon  liberty. 


210  POPULAR  LAW-MAKING 

Yet  there  is  possibly  a  majority  of  the  members  of  the  labor 
unions  who  would  wish  to  control  him  in  this  particular  to- 
day; and  will  take  for  an  example  that  under  the  police 
power  the  state  has  been  permitted  to  control  him  in  mat- 
ters affecting  the  public  health  or  safety,  as,  for  instance,  in 
the  running  of  railway  trains,  or,  in  Utah,  in  labor  in  the 
mines.  But  freedom  of  contract  in  this  connection  results 
generally  from  personal  liberty  itself;  although  it  results 
also  from  the  right  to  property;  that  is  to  say,  a  man's 
wages  (or  his  trade,  for  matter  of  that)  is  his  property,  and 
the  right  of  property  is  of  no  practical  use  if  you  cannot  have 
the  right  to  make  contracts  concerning  it. 

The  only  matter  more  important  doubtless  in  the  laborer's 
eye  than  the  length  of  time  he  shall  work  is  the  amount  of 
wages  he  shall  receive.  Now  we  may  say  at  the  start  that 
in  the  English-speaking  world  there  has  been  practically 
no  attempt  to  regulate  the  amount  of  wages.  We  found 
such  legislation  in  mediaeval  England,  and  we  also  found  that 
it  was  abandoned  with  general  consent.  But  of  late  years 
in  these  socialistic  days  (using  again  socialistic  in  its  proper 
sense  of  that  which  controls  personal  liberty  for  the  interest 
of  the  community  or  state)  it  is  surprisingly  showing  its 
head  once  more.  In  Australasia  and  more  recently  in  Eng- 
land we  see  the  beginning  of  a  minimum  wage  system  which 
we  must  most  carefully  describe  before  we  leave  the  sub- 
ject. There  was  in  the  State  of  Indiana  a  law  that  in  ordi- 
nary unskilled  labor  in  public  employment  there  should  be  a 
minimum  wage  of  fifteen  cents  per  hour  or  twenty-five  cents 
for  a  man  and  horse — since  declared  unconstitutional  by 
Indiana  courts:  while  to-day  such  labor  receives  a  mini- 
mum of  two  dollars  per  day  in  California  and  Nebraska,  one 
dollar  and  a  quarter  in  Hawaii,  three  dollars  in  Nevada,  and 
"the  usual  rate"  in  Delaware  and  New  York,1  and  we  are 
many  of  us  familiar  with  the  practice  of  towns  and  villages 
in  New  England  or  New  York  in  passing  a  vote  or  town 
1  See  above,  p.  161;  below,  p.  213. 


MINIMUM-WAGE  LAWS  211 

ordinance  fixing  the  price  of  wages  at  two  dollars  per  day,  or 
a  like  sum;  but  this  practice,  it  must  be  remarked,  is  in  no 
sense  a  law  regulating  wages;  it  is  merely  the  resolution  or 
resolve  of  an  employer  himself,  as  a  private  citizen  might  say 
that  he  would  give  his  gardener  fifty  dollars  a  month  instead 
of  forty.  And,  on  the  other  hand,  the  Constitution  of  Louisi- 
ana provides  that  the  price  of  wages  shall  never  be  fixed  by 
law.  Now  it  will  be  remembered  that  the  Statutes  of  La- 
borers of  the  Middle  Ages,  when  they  regulated  the  price 
of  wages,  led  directly  to  the  result  that  they  made  all  strikes, 
all  concerted  efforts  to  get  an  increase  of  wages,  unlawful 
and  even  criminal;  in  fact,  it  may  be  said  that  this  attempt 
to  bind  the  workmen  to  a  wage  fixed  by  law  was  the  very 
cause  of  the  notion  that  strikes  were  illegal,  which,  indeed, 
was  the  English  common  law  down  to  early  in  the  last  cen- 
tury. Moreover,  when  an  English  mediaeval  peasant  refused 
to  labor  for  his  three  pence  a  day  he  might  be  sent  to  gaol  by 
the  nearest  justice  of  the  peace,  as,  perhaps,  some  employers 
would  like  to  do  to-day  in  our  South,  and  which  resulted — 
if  not  in  slavery — in  precisely  that  condition  which  we  call 
"peonage."  Economically  speaking,  the  attempt  to  regu- 
late wages  was,  of  course,  a  mistake;  politically  speaking,  it 
was  universally  unpopular,  and  no  class  was  more  desirous 
than  the  working  class  themselves  of  getting  rid  of  all  such 
legislation,  which  they  did  in  France  at  the  French  Revolu- 
tion, and  in  England  nearly  two  centuries  earlier.  Only 
socialists  should  logically  desire  to  go  back  to  the  system, 
and  in  the  one  modern  English-speaking  State  which  is 
largely  socialistic — New  Zealand — it  is  said  that  the  mini- 
mum wage  law  has  had  the  effect  that  a  similar  resolve  has 
had  in  Massachusetts  towns:  to  drive  all  the  old  men  and 
all  the  weaker  or  less  skilled  out  of  employment  entirely, 
and  into  the  poorhouse;1  for,  at  a  fixed  price,  it  is  obvious 

1  In  the  old  town  of  Plymouth  the  chairman  of  the  selectmen  asked  what 
he  should  do  under  vote  of  town  meeting  requiring  him  to  pay  two  dollars 
a  day  for  all  unskilled  labor  employed  by  the  town.  "We  have,"  he  said, 
"about  one  hundred  and  twenty  old  men  in  Plymouth,  largely  veterans  of 


212  POPULAR  LAW-MAKING 

that  the  employer  will  employ  only  the  most  efficient  labor, 
and  the  same  argument  causes  some  of  their  more  thoughtful 
friends  to  dissuade  the  women  school-teachers  in  New  York 
from  their  present  effort  to  get  their  wages  or  salaries  fixed 
by  law  at  a  price  equal  to  that  paid  a  man.1 

A  principle  somewhat  akin  to  that  of  a  vote  of  a  town  fix- 
ing the  rate  of  wages  is  the  recent  constitutional  amend- 
ment in  the  State  of  New  York  (see  above,  p.  161)  which 
validated  the  statute  requiring  that  in  public  work  (that  is  to 
say,  labor  for  the  State,  for  cities,  towns,  counties,  villages, 
school  districts,  or  any  municipality  of  the  State),  or  for  con- 
tractors employed  directly  or  indirectly  by  the  State  or  such 
municipality,  that  rate  shall  be  paid  which  is  usual  at  the 
time  in  the  same  trade  in  the  same  neighborhood.  This 
was  the  earliest  statute,  which  was  declared  unconstitutional 
(see  above,  p.  161).  The  lack  of  interest  in  this  tremen- 
dously important  matter  is  shown  in  the  fact  that  not  one- 
third  of  the  voters  took  the  trouble  to  vote  on  the  amend- 
ment at  all,  and  that  for  three  days  after  the  election  no  New 
York  newspaper  took  notice  of  the  fact  that  the  amendment 
had  passed.  Up  to  this  constitutional  amendment  the  courts 
of  New  York,  as  well  as  those  of  California  and  even  of  the 
United  States,  had  resented  with  great  vigor  the  attempt  of 
statutes  to  make  a  crime  the  permitting  of  a  free  American 
citizen  to  work  over  eight  hours  if  he  liked  so  to  do.  But 
in  New  York  at  least  (now  followed  in  Delaware,  Mary- 
land, and  Oklahoma)  it  is  now  settled  that  so  much  inter- 
ference even  with  the  rate  of  wages  may  be  allowed,  and 
as  the  percentage  of  public  employment  is,  of  course,  very 
large — covering  as  it  does  not  only  all  public  contractors, 

the  Civil  War.  We  have  been  in  the  habit  of  giving  them  one  dollar  and  a 
quarter  per  day.  Under  this  two-dollar  vote  we  cannot  do  it  without  bank- 
rupting the  town."  He  was  advised  to  go  ahead  and  still  pay  them  the 
dollar  and  a  quarter  per  day  and  take  the  chance  of  a  lawsuit,  which  he 
did,  and  so  far  as  the  writer  knows  no  lawsuit  has  ever  been  brought;  but 
in  all  cases  that  would  not  be  the  result. 

i  This  is  law  in  Utah;  but  nevertheless  a  letter  from  a  State  government 
official  informs  me  that  women  are  willing  to  [and  do?]  work  for  a  smaller 
salary. 


HOURS  OF  LABOR  LAWS  213 

but  all  labor  in  or  for  gaols  or  public  institutions — it  will 
necessarily,  it  would  seem,  drag  with  it  a  certain  practical 
regulation  of  private  industry  corresponding  to  the  public 
rules. 

In  England,  the  New  Zealand  experiment  has  been  ten- 
tatively begun;  that  is  to  say,  in  the  last  radical  Parlia- 
ment, in  the  autumn  of  1909,  the  law  was  enacted,  already 
referred  to,  for  fixing  wages  by  mixed  commission  (see  above, 
p.  159);  but  otherwise  than  as  above  there  is  in  the  States 
and  Territories  of  the  United  States,  and  in  the  United  States 
itself,  no  regulation  of  wages,  even  of  women  or  children,  and 
no  attempt,  as  yet,  at  a  minimum  wage  law. 

When  we  come  to  hours,  the  matter  is  very  different.  In 
the  first  place,  we  must  be  reminded  that  without  a  consti- 
tutional amendment  you  cannot  have  any  direct  or  indirect 
legislation,  as  to  general  occupations,  on  the  hours  of  labor 
of  a  man  of  full  age.1  You  can  have  regulation  of  the  hours 
of  labor  of  a  woman  of  full  age  in  general  employments,  by 
court  decision,  in  three  States  (Massachusetts,  Oregon,  and 
Illinois),  the  Massachusetts  decision,  carelessly  rendered  in 
1876,  without  citing  any  authority  whatever,2  being  based 
apparently  on  a  vague  notion  of  general  sanitary  reasons, 
without  argument  or  apparently  due  consideration  of  the 
historical  and  constitutional  law;  but  the  Oregon  case,3 
decided  both  by  the  State  Supreme  Court  and  by  the  Fed- 
eral Court  in  so  far  as  the  Fourteenth  Amendment  was 
concerned,  after  most  careful  and  thorough  discussion  and 
reasoning,  reasserted  the  principle  that  a  woman  is  the  ward 
of  the  state,  and  therefore  does  not  have  the  full  liberty  of 
contract  allowed  to  a  man.  Whether  this  decision  will  or 
will  not  be  pleasing  to  the  leaders  of  feminist  thought  is  a 
matter  of  considerable  interest.  A  similar  statute  in  Illinois 

1  Georgia  and  South  Carolina  have  such  law.  requiring  sixty-six  and  sixty 
hours  a  week  respectively  in  cotton  and  woollen  manufacturing;  but  their 
constitutionality  has  never  been  tested.     For  public  work,  see  below. 

2  Commonwealth  v.  Hamilton  Manufacturing  Co.    120  Mass.  383. 

1  Muller  v.  Oregon,  208  U.  S.  412.    So  in  Pennsylvania:  Commonwealth  v. 
Beatty,  23  Penu.  C.  C.  300. 


214  POPULAR  LAW-MAKING 

had  been  declared  unconstitutional  twenty  years  before, 
largely  on  the  ground  that  to  limit  or  prohibit  the  labor  of 
woman  would  handicap  her  in  her  industrial  competition 
with  man,  pointing  out  also  that  the  Illinois  Constitution 
itself  prescribes  and  requires  that  the  rights  of  the  sexes 
should  in  all  respects  be  identical,  save  only  in  so  far  as  jury 
and  militia  service  and  political  rights  were  concerned.  A 
new  statute  since  the  Oregon  decision  has  been  passed  in 
Illinois  and  the  law  was  sustained,  reversing  the  older  case. 
On  the  other  hand  New  York  courts  take  a  position  squarely 
contrary,1  and  so  in  Colorado.2  The  constitutional  justifi- 
cation of  these  decisions  must  probably  be  that  the  health 
not  only  of  the  women  themselves,  but  of  the  general  public, 
or  at  least  of  posterity,  is  concerned,  for,  as  we  shall  find 
more  particularly  when  we  discuss  general  legislation  on  the 
police  power,  to  justify  an  interference  with  personal  liberty 
of  freemen  there  must,  under  English  ideas,  be  a  motive 
based  upon  the  health,  safety,  and  well-being  of  all  of  the 
whole  community,  not  merely  of  the  particular  citizen  con- 
cerned. He  has  the  right  to  work  in  unhealthy  trades  at 
unhealthy  times,  or  under  unhealthy  conditions,  just  as  he 
has  the  right  to  consume  unhealthy  food  and  drink.  If  it 
be  prohibited,  it  must  be  prohibited  when  it  has  a  direct 
relation  to  the  general  welfare.  For  example,  a  railway 
engineer  may  be  prohibited  from  working  continuously  for 
more  than  sixteen  hours,  for  that  is  a  direct  danger  to  the 
safety  of  the  public;  but  a  man  may  not  be  prohibited  from 
taking  service  for  long  hours  as  stoker  on  a  steamship, 
although  the  life  of  a  stoker  be  a  short  one  and  not  over 
merry.  Apparently,  however,  a  woman  can  be;  and  indeed 
there  have  for  a  long  time  been  laws  prohibiting  the  labor 
of  women  in  England  and  regulating  their  hours.  But  then 
there  are  laws  prohibiting  women  from  serving  in  immoral 
occupations,  or  occupations  which  are  supposed  to  be  dan- 
gerous to  their  morals,  as,  for  instance,  many  States  have 
i  People  v.  Williams,  81  N.  E.  778.  2  Bucher  v.  People,  93  Pac.  14. 


LAWS  RESTRICTING  WOMEN'S  LABOR  215 

laws  against  the  serving  of  liquor,  or  even  of  food,  by  women 
or  girls  in  places  or  restaurants  where  liquor  is  served, 
or  for  certain  hours,  or  in  certain  places.  Very  conceiv- 
ably a  law  might  be  'passed  prohibiting  women  and  girls 
from  the  selling  of  programmes,  or  attending  upon  dime 
museums,  or  even  selling  newspapers,  or  being  district  mes- 
sengers; but,  as  we  all  know,  there  are  women  cabmen  in 
Paris.  Would  legislation  prohibiting  such  employment  to 
women  be  unconstitutional?  There  is  already  a  consider- 
able amount  of  it.  The  cases  are  conflicting,  the  earlier 
view,  and  the  view  taken  in  the  South  and  in  at  least  one 
Federal  court,  being  that  such  laws  are  unconstitutional. 
The  modern  doctrine,  backed  up  by  that  public  opinion 
which  we  have  above  described  as  the  ethical  force,  would 
seem  to  sustain  them.  The  truth  is  probably  that  the  legis- 
lature must  be  the  sole  judge  of  the  expediency  of  such  legis- 
lation; where  the  court  can  see  that  it  does  bear  a  direct 
relation  to  the  morals  of  the  young  women  concerned,  or 
the  morals  of  the  general  community,  it  will  be  sustained 
as  constitutional  under  the  police  power,  although  to  that 
extent  interfering  with  the  personal  liberty  of  women  and 
with  their  means  of  getting  a  livelihood. 

As  to  children  there  is,  of  course,  no  question.  Laws 
limiting  their  labor  are  perfectly  constitutional,  and  some 
child-labor  laws  exist  already  in  all  States  and  Territories 
except  Nevada.  The  only  dispute  on  the  child-labor  ques- 
tion is  whether  such  legislation  should  be  Federal,  or  rather 
whether  the  Constitution  should  be  so  amended  as  to  make 
Federal  legislation  possible.  Practically  this  would  meet 
with  a  very  much  wider  opposition  than  is  commonly  sup- 
posed. The  writer,  acting  as  chairman  of  the  National 
Conference  of  Commissioners  on  Uniformity  of  Legislation 
appointed  under  laws  of  more  than  thirty  States  of  the  Union 
and  meeting  in  Detroit,  Michigan,  in  1895,  brought  this 
matter  up  under  a  resolution  of  the  Legislature  of  the  State 
of  Massachusetts  requesting  him  to  do  so.  Nearly  every 


216  POPULAR  LAW-MAKING 

Southern  delegate  and  most  of  those  from  the  West  and 
from  the  Middle  States  were  on  their  feet  at  once  objecting, 
and  the  best  he  could  do  was  to  get  it  referred  to  a  committee 
rather  than  have  the  Commonwealth  of  Massachusetts  sum- 
marily snubbed.  This  committee,  of  course,  never  reported. 

Undoubtedly  climatic  effects,  social  conditions,  and  dozens 
of  other  reasons  make  it  difficult,  if  not  unwise,  to  attempt 
to  have  the  same  rules  as  to  hours  of  labor  in  all  the  States 
of  our  wide  country.  Boys  and  notably  girls  mature  much 
earlier  in  the  South  than  they  do  in  the  North;  schooling 
conditions  are  not  the  same,  homes  are  not  so  comfortable, 
the  money  may  be  more  needed,  the  general  level  of  educa- 
tion is  less.  Doubtless  there  are  still  areas  in  the  South 
where  on  the  whole  it  is  better  for  a  child  of  fourteen  to  be  in 
a  cotton  mill  than  anywhere  else  he  is  likely  to  go,  schools 
not  existing.  The  Southern  delegates  resented  interference 
with  their  State  police  power  for  these  reasons.  The  Mas- 
sachusetts Legislature,  on  the  other  hand,  had  in  mind  the 
competition  of  Southern  mills,  with  cheap  child  labor,  quite 
as  much  as  any  desire  to  benefit  the  white  or  negro  children 
of  the  South;  but  the  writer's  experience  convinced  him  that 
a  constitutional  amendment  on  this  point  is  impossible, 
although  one  has  been  repeatedly  proposed,  notably  by  the 
late  Congressman  Levering  of  Massachusetts,  and  such  an 
amendment  is  still  pending  somewhere  in  that  limbo  of 
unadopted  constitutional  amendments  for  which  no  formal 
cemetery  seems  to  have  been  prepared. 

Even  as  to  men,  the  labor  of  the  Southern  States  is  notably 
different  from  the  labor  of  Lowell  or  Lawrence,  Massachu- 
setts, or  even  Cambridge;  while  on  the  Panama  Canal  or  in 
most  tropical  countries  the  ordinary  laborer  likes  to  pretend 
that  he  is  working  eighteen  hours  a  day,  although  most  of 
the  time  is  spent  in  eating  or  sleeping.  Nevertheless,  under 
the  Federal  law,  all  employees  at  Panama  have  to  be  given 
the  eight-hour  day  required  by  the  Federal  statute,  the  Su- 
preme Court  having  upheld  that  act  as  constitutional. 


HOURS  OF  LABOR  OF  CHILDREN  217 

It  is  curious  to  note,  in  passing,  the  alignment  of  our  courts 
upon  this  subject  of  hours  of  labor  and  general  interference 
with  the  freedom  of  contract  of  employment.  The  Western 
and  Southern  States  are  most  conservative;  that  is  to  say, 
most  severe  in  enforcing  the  constitutional  principles  of 
liberty  of  contract  as  against  any  statute.  The  courts  of  the 
North  and  East  are  more  radical,  and  the  courts  of  Massa- 
chusetts and  the  United  States  most  radical  of  all.  I  ac- 
count for  this  fact  on  the  ground  that  where  the  legislatures 
are  over-radical,  the  courts  tend  to  react  into  conservatism, 
and  as  the  Western  legislatures  try  many  more  startling 
experiments  than  are  usually  attempted  in  Massachusetts  or 
New  Jersey,  the  more  intelligent  public  opinion  has  to 
depend  on  the  courts  to  apply  the  curb.  All  this,  of  course, 
is  a  great  mistake;  for  it  forces  undue  responsibility  on  the 
courts,  at  least  tends  to  control  in  an  improper  way  the  ap- 
pointment of  judges,  and  at  best  forces  the  most  upright 
judge  into  a  position  where  he  should  not  be  put — that  of 
being  a  kind  of  king  or  lord  chamberlain,  with  power  to 
set  aside  improper  or  wrong  legislation. 

With  these  preliminary  remarks  we  are  now  prepared  to 
examine  the  legislation  as  it  exists  to-day  (1910);  cautioning 
our  readers  that  this  subject,  as  indeed  all  others  concerning 
labor  legislation,  is  so  often  tinkered  in  all  our  States  as  to 
make  our  statements  of  little  permanent  value,  except  that 
restrictions  once  imposed  are  rarely  repealed.  We  may 
assume,  therefore,  that  the  law  is  at  least  as  radical  as  it  is 
herein  presented. 

The  hours  of  labor  of  adults,  males,  in  ordinary  indus- 
tries remain  as  yet  unrestricted  by  law  in  any  State  of  the 
Union;  but  several  States  have  laws  making  a  certain  num- 
ber of  hours  a  day's  work  in  the  absence  of  contract  ;*  and 

1  Thus  eight  hours  (California,  Connecticut,  Illinois,  Indiana,  Missouri, 
New  York,  Ohio,  Pennsylvania,  Wisconsin);  ten  hours  (Florida,  Maine, 
Michigan — with  pay  for  overtime — Minnesota,  Montana,  Maryland — for 
manufacturing  corporations — Nebraska,  New  Hampshire,  Rhode  Island, 
South  Carolina— in  cotton  and  woollen  mills— in  New  Jersey,  fifty-five  hours 
a  week  in  factories;  in  Georgia  eleven  hours  in  manufacturing  establishments. 


218  POPULAR  LAW-MAKING 

New  York  and  a  few  other  States  have  an  eight-hour  day  in 
"public"  work — that  is  to  say,  work  directly  for  the  State  or 
any  municipality  or  for  a  contractor  undertaking  such  work.1 

The  labor  of  women  (in  mechanical  trades,  factories  and 
laundries  in  Illinois,  or  in  mercantile,  hotel,  telegraph,  tele- 
phone, etc.,  as  well,  in  Oregon)  for  more  than  a  limit  of  ten 
hours  per  day  in  Illinois,  or  nine  in  Oregon,  is  prohibited 
and  made  a  misdemeanor;  and  both  these  statutes  have  been 
held  constitutional.  But  in  many  other  States  the  hours  of 
labor  in  factories  or  manufacturing  establishments,  even  of 
adult  women,  are  now  regulated;  while  the  labor  of  children, 
as  we  shall  find,  is  regulated  in  nearly  all.  Thus,  Connec- 
ticut, Illinois,  Maine,  Maryland,  Massachusetts,  Michigan, 
Minnesota,  Nebraska,  New  Hampshire,  New  York,  North 
Dakota,  Oklahoma,  Oregon,  Pennsylvania,  Rhode  Island, 
South  Dakota,  Tennessee,  Virginia,  and  Washington  have  a 
ten-hour  day  in  all  manufacturing  or  mechanical  employ- 
ments for  women  of  any  age,  which  in  Connecticut,  Massa- 
chusetts, Michigan,  Minnesota,  Missouri,  Nebraska,  Ore- 
gon, Pennsylvania,  and  Washington  extends  to  mercantile 
avocations  also,  in  Louisiana  only  to  specified  dangerous 
trades;  in  Wisconsin,  eight  hours;  and  in  Connecticut, 
Maine,  Minnesota,  New  Hampshire  there  may  not  be  more 
than  fifty-eight  hours  a  week,  or  in  Massachusetts  and 
Rhode  Island,  fifty-six,  and  in  Michigan  and  Missouri,  fifty- 
four.  Arizona  has  an  eight-hour  day  in  laundries. 

And  these  laws  are  extended  to  specified  occupations,  viz., 
in  Connecticut  to  manufacturing,  mechanical,  and  mercan- 
tile; in  Illinois,  mechanical,  factory,  or  laundry;  in  Louisiana, 

or  from  sunrise  to  sunset  by  all  persons  under  twenty-one,  mealtimes  ex- 
cluded (see  below).  But  these  laws  do  not  usually  apply  to  agricultural 
or  domestic  employment  or  to  persons  hired  by  the  month. 

i  In  public  work,  that  is,  work  done  for  the  State,  or  any  county  or  mu- 
nicipality or  for  contractors  therefor,  the  eight-hour  day  is  prescribed  (Cali- 
fornia, Colorado,  Delaware,  District  of  Columbia,  Hawaii,  Idaho,  Indiana, 
Kansas,  Maryland,  Massachusetts,  Minnesota,  Montana,  Nebraska,  Nevada, 
New  York,  Oklahoma,  Oregon,  Pennsylvania,  Porto  Rico,  Utah,  Washing- 
ton, West  Virginia,  Wisconsin,  Wyoming,  and  the  United  States).  But 
the  provisions  for  overtime  and  compensation  for  overtime  differ  consider- 
ably. 


HOURS  OF  LABOR  IN  FACTORIES,  ETC.         219 

unhealthful  or  dangerous  occupations  except  agricultural  or 
domestic;  in  Maine,  mechanical  and  manufacturing  except 
of  perishable  products;  in  Maryland,  special  kinds  of  man- 
ufactories; in  Massachusetts,  manufacturing,  mechanical, 
mercantile,  and  restaurants;  in  Michigan,  Minnesota,  and 
Missouri,  manufacturing,  mechanical,  and  mercantile  or 
laundries;  in  Nebraska,  manufacturing,  mercantile,  hotel,  or 
restaurant;  in  New  Hampshire,  New  York,1  North  Dakota, 
Oklahoma,  Rhode  Island,  manufacturing  and  mechanical ;  in 
Tennessee  and  Virginia,  manufacturing  only;  in  Washington 
and  Oregon  manufacturing,  mechanical,  mercantile,  laundry, 
hotel,  or  restaurant,  and  in  Wisconsin,  mechanical  or  manu- 
facturing. Georgia  and  South  Carolina  regulate  the  labor  of 
women  as  they  do  of  adult  men 3  in  factories.  Such  laws  of 
course  would  not  be  unconstitutional  or,  if  so,  not  for  the 
reason  of  sex  discrimination. 

Now  all  these  laws  arbitrarily  regulate  the  hours  of  labor 
of  women  at  any  season  without  regard  to  their  condition  of 
health,  and  are  therefore  far  behind  the  more  intelligent 
legislation  of  Belgium,  France,  and  Germany,  which  con- 
siders at  all  times  their  sanitary  condition,  and  requires  a 
period  of  rest  for  some  weeks  before  and  after  childbirth. 
The  best  that  can  be  said  of  them,  therefore,  is  that  they  are 
a  beginning.  No  law  has  attempted  to  prescribe  the  social 
condition  of  female  industrial  laborers,  the  bill  introduced  in 
Connecticut  that  no  married  woman  should  ever  be  allowed 
to  work  in  factories  having  failed  in  its  passage. 

The  hours  of  labor  of  minors,  male  and  female,  are  limited 
in  all  States,  except  Florida,  Missouri,  Montana,  Nebraska, 
Nevada,  New  Mexico,  South  Carolina,  Texas,  Vermont,  Utah, 
Washington,  West  Virginia,  and  Wyoming,  particularly  in 
factories  and  stores,  usually  under  an  age  limit  of  sixteen,  to 
ten  hours  per  day  or  fifty-eight  hours  a  week.3  But  in  Ala- 

1  Possibly  unconstitutional.     See  above.  2  See  above. 

1  Connecticut,  Maine,  Massachusetts  (in  manufacturing,  fifty-six)  Missis- 
sippi, New  Hampshire  (nine  hours,  forty  minutes),  Pennsylvania.  In 
others,  sixty  hours  a  week  (Alabama,  Arkansas,  Indiana,  Iowa,  Kentucky, 


220  POPULAR  LAW-MAKING 

bama,  Arkansas,  and  Virginia,  the  age  is  as  low  as  fourteen, 
and  in  California,  Indiana,1  Louisiana,  Maine,1  Massachu- 
setts, Michigan,  North  Carolina,  Ohio,1  Pennsylvania,1  and 
South  Dakota,1  it  is  eighteen.  In  California,  Delaware, 
Idaho,  and  New  York,  it  is  nine  hours,  and  in  Colorado, 
District  of  Columbia,  Illinois,  Indiana,  Kansas,  New  York,2 
North  Dakota,  Ohio,  and  Oklahoma,  it  is  as  low  as  eight  hours 
a  day,  though  the  laws  in  several  States,  as  in  New  York,  are 
contrary  and  overlie  each  other.  A  corresponding  limit,  but 
sometimes  less,  is  fixed  for  the  week;  that  is,  in  the  nine-hour 
States  and  some  others,  weekly  labor  may  not  exceed  fifty- 
four  hours  or  less.3 

Night  work  in  factories,  etc.,  is  prohibited  in  nearly  all  the 
States  mentioned  and  in  others.4  Many  States  require  work- 
ing papers  or  certificates  of  age  of  the  person  employed,  and 
there  are  often  also  certificates  as  to  the  required  amount  of 
schooling  when  necessary.  Indeed  it  may  be  said  that  we 
are  on  the  way  to  the  German  system  of  having  time  cards  or 
certificates  furnished  by  State  machinery  for  all  industrial 
workers,  and  such  a  system  will,  of  course,  be  absolutely 
necessary  should  the  State  ever  engage  in  old-age  insurance, 
as  has  been  done  in  Germany  and  England ;  though  the  prac- 

Maryland  (in  Baltimore  only),  Minnesota,  New  York,  Oregon,  South  Dakota 
Tennessee,  Wisconsin). 

1  As  to  females  only  (Indiana,  Maine,  Ohio,  Pennsylvania,  South  Dakota). 

2  In  factories  (New  York). 

3  Fifty-four   hours    (Delaware,    Idaho,    Michigan,    New   York),    fifty-five 
hours  (New  Jersey),  fifty-six  hours  (Massachusetts,  Rhode  Island),  forty- 
eight  hours  (District  of  Columbia,  Illinois,  Kansas,  Ohio,  Oklahoma),  sixty- 
six  hours  (North  Carolina). 

4  Thus,  night  labor  in  factories  to  minors  under  fourteen  (Arkansas,  Georgia, 
Massachusetts,  North  Carolina,  Texas,  Virginia),  twelve  (South  Carolina), 
eighteen  (New  Jersey),  or  sixteen  (Alabama,  California,  Connecticut,  Dela- 
ware, District  of  Columbia,  Idaho,  Illinois,  Iowa,  Kansas,  Kentucky,  Lou- 
isiana, Michigan,  Minnesota,  Mississippi,  New  York,  North  Dakota,  Ohio, 
Oklahoma,  Oregon,   Pennsylvania,   Rhode  Island.   Vermont,   Wisconsin)  is 
prohibited  in  factories  or  mercantile  establishments   (Connecticut,   Iowa, 
Kansas,    Michigan,    New    York),   or   any   gainful    occupation    (Delaware, 
District  of  Columbia,  Idaho,  Illinois,  Kentucky,  Louisiana,  Minnesota,  North 
Carolina,   North  Dakota,  Ohio,   Oklahoma,    Oregon,  Pennsylvania,  Rhode 
Island,  Texas,  Vermont,  Wisconsin).      In    South    Carolina  the  law   only 
protects  children  under  twelve  from  night  labor  in  mines  and  factories.     So 
in  some  as  to  all  females  only  (Indiana),  females  under  eighteen  (Louisiana, 
Michigan,  Ohio,  Oklahoma,  Pennsylvania),  twenty-one  (New  York),  and  to 
any  minor  between  10  P.  M.  and  6  A.  M.  (Massachusetts). 


CHILD  LABOR   PROHIBITED  221 

tical  difficulty  of  such  a  scheme  would  have  been  thought  by 
our  fathers  insuperable  on  account  of  our  Federal  and  State 
system  of  government,  and  the  necessary  free  immigration  of 
American  workmen  from  one  State  into  another. 

These  laws  will  be  found  summarized  in  full  in  Legisla- 
tive Review,  No.  5,  of  the  American  Association  for  Labor 
Legislation,  by  Laura  Scott  ("Child  Labor"),  and  in  No.  4, 
by  Maud  Swett  ("Woman's  Work"). 

It  will  be  seen  that  in  all  respects  practicable  with  our 
necessary  system  of  individual  liberty,  doubly  guaranteed  by 
the  constitutions,  State  and  Federal,  we  are  quite  abreast  of 
the  more  intelligent  legislation  of  European  countries  as  to 
hours  of  labor,  women's  and  children's,  except  in  a  few 
States.  But  it  should  be  remembered  that  these  are  largely 
agricultural  or  mining  States,  and  doubtless  when  the  abuse 
of  child  and  woman  labor  presents  itself  it  will  be  met  as 
frankly  and  fairly  there  as  in  others. 

On  the  constitutionality,  if  not  the  economic  wisdom  of 
laws  regulating  the  hours  of  labor  of  women,  at  least  of 
adult  years,  there  still  is  decided  difference  of  opinion.  Logi- 
cally it  would  perhaps  seem  as  if  those  who  believe  in 
the  "Woman's  Rights"  movement  of  uniform  function  for 
women  and  men,  should  be  opposed  to  all  such  legislation; 
both  on  theoretical  grounds  as  being  a  restraint  of  personal 
liberty,  and  as  unequal  legislation  handicapping  woman  in 
her  industrial  competition  with  man.  This  was  certainly 
the  earlier  view;  but  under  the  influence  of  certain  voluntary 
philanthropic  associations  the  tendency  at  present  seems  to 
be  the  other  way. 

The  States  which  have  laws  prohibiting  any  labor  of  chil- 
dren whatever,  even,  apparently,  agricultural  or  domestic,  * 

»The  New  York  law  applies  to  "any  business  or  service,"  but  I  assume 
this  cannot  mean  service  rendered  to  the  parents  in  the  house  or  on  the 
farm ;  in  fact  it  may  be  generally  assumed  that  all  these  laws,  even  when  they 
do  not  say  so,  mean  only  employment  for  hire;  the  Oregon  and  Wisconsin 
laws,  to  "any  work  for  compensation";  the  Washington  law  to  "any  inside 
employment,  factory,  mine,  shop,  store,  except  farm  or  household  work." 
Arkansas,  Delaware,  Idaho,  and  Wisconsin,  to  "any  gainful  occupation"; 


222  POPULAR  LAW-MAKING 

are:  Arizona,  Arkansas,  Connecticut,  Colorado,  Delaware, 
Florida,  Idaho,  Illinois,  Kansas,  Kentucky,  Maryland,  Mis- 
souri, Massachusetts,  Minnesota,  Montana,  Nebraska,  New 
York,  North  Dakota,  Oregon,  Washington,  and  Wisconsin. 

And  the  age  limit  fixed  for  such  general  employment  is 
(without  regard  to  schooling)  under  twelve,  in  Idaho  and 
Maryland ;  under  fourteen  in  Delaware,  Illinois,  and  Wiscon- 
sin; and  under  fourteen  for  boys  and  sixteen  for  girls  in 
Washington,  if  without  permit,  and  under  fifteen,  for  more 
than  sixty  days  without  the  consent  of  the  parent  or  guardian 
in  Florida;  in  other  States  the  prohibition  rests  on  educa- 
tional reasons,  and  covers  only  the  time  of  year  during  which 
schools  are  in  session;  thus,  under  eight  during  school  hours, 
or  fourteen  without  certificate  (Missouri);  under  fourteen 
during  the  time  or  term  of  school  sessions  (Connecticut,  Colo- 
rado,1 Massachusetts,  Idaho,  Kansas,  Kentucky,  Minnesota, 
New  York,  North  Dakota) ;  or  under  fourteen  during  actual 
school  hours  (Arizona,2  Kentucky,  Nebraska,  Oregon) ;  or  un- 
der fifteen  in  Washington,1  and  under  sixteen  as  to  those  who 
cannot  read  and  write  (Colorado,  Connecticut,3  Illinois,3- 4)  or 
have  not  the  required  school  instruction  (Idaho,  New  York1-4), 
or  during  school  hours  (Arkansas,  Montana1),  or  who  have 
not  a  labor  permit  (Maryland,  Minnesota,  Wisconsin).  This 
resume"  shows  a  pretty  general  agreement  on  the  absolute 
prohibition  of  child  labor  under  fourteen,  or  under  sixteen 
as  to  the  uneducated;  and  the  penalty  is  in  most  States 
only  a  fine  inflicted  on  the  employer,  or,  in  some  cases, 
the  parent;  but  in  Florida  and  Wisconsin  it  may  be  impris- 
onment; as  it  is  in  Alabama  for  a  second  offence. 

But  more  States  fix  a  limit  of  age  in  the  employment  of 
children  in  factories  or  workshops,  and  particularly  in 

Maryland,  to  "any  business,"  etc.,  except  farm  labor  in  summer;  Colorado, 
to  labor  for  corporations,  firms,  or  persons;  the  other  State  laws  to  any 
work. 

1  Without  schooling  certificate. 

2  Without  certificate  of  excuse. 

8  Unless  the  child  attends  a  night  school. 
*  Without  age  certificate. 


AGE  LIMIT  FOR  CHILD  LABOR  223 

mines;  not  so  usually,  however,  in  stores.1  The  age  of 
absolute  prohibition  is  usually  fixed  at  fourteen  or  at  sixteen 
in  the  absence  of  a  certain  amount  of  common-school  edu- 
cation. These  States  are:  Alabama,2  Arkansas,3'  9  Cali- 
fornia,4- 9  Colorado,5  Connecticut,5  Delaware,5'  6  District  of 
Columbia,7- 9  Florida,3'  9  Georgia,8  Illinois,5'  9  Indiana,9'  10 
Iowa.11'9  Kansas  and  Kentucky 8  forbid  factory  labor  for 
children  under  fourteen  or  between  fourteen  and  sixteen 
without  an  age  certificate  or  an  employment  certificate; 
Louisiana 9  has  the  usual  statute,  that  is,  absolute  prohibi- 
tion under  fourteen  and  age  certificate  required  for  those 
between  fourteen  and  sixteen,  or,  in  the  case  of  girls,  between 
fourteen  and  eighteen,  and  the  law  applies  to  mercantile 
occupations  where  more  than  five  persons  are  employed;  the 
Maine  statute  is  similar,  but  children  above  fifteen  may  work 
in  mercantile  establishments  without  age  or  schooling  certifi- 

1  The  law  does  apply  to  "mercantile  establishments"  (Alabama,  Arkansas, 
California,  District  of  Columbia,  Florida,  Illinois,  Indiana,  Iowa,  Kentucky, 
Louisiana,  Maryland,   Massachusetts,   Michigan,   Missouri,   Nebraska,   New 
York,  North  Dakota,  Ohio,  Oregon,  Pennsylvania,  Rhode  Island,  Virginia, 
West  Virginia). 

2  Absolute  prohibition  only  under  twelve.     School  and    age  certificate 
from  twelve  to  sixteen;  age  certificate  from  sixteen  to  eighteen. 

I  The  ages  are  fourteen  and  eighteen  respectively,  or  sixteen  in  stores 
during  school  hours;  in  Florida,  twelve,  or  when  school  is  not  in  session, 
without  an  age,  schooling,  and  medical  certificate. 

4  Absolute  prohibition  under  twelve  or  from  twelve  to  fourteen  during 
the  school  term  or  under  sixteen  to  those  who  cannot  read  and  write,  and 
the  law  applies  to  mercantile  establishments,  hotel  and  messenger  work, 
etc.,  making  expressly  the  usual  exemption  of  agricultural  or  domestic 
labor. 

6  Absolute  prohibition  under  fourteen;  from  fourteen  to  sixteen  without 
certificate  (Connecticut /Illinois,  Kansas,  Kentucky),  and  medical  certificate 
if  demanded  (Delaware). 

8  Any  gainful  occupation  under  fourteen.     Except  canning  fruit,  etc. 
(Delaware). 

7  Any  business  or  occupation  during  school  hours,  except  in  the  United 
States  Senate,  and  the  age  is  absolute  prohibition  under  twelve;  twelve  to 
fourteen  without  a  dependency  permit,  and  fourteen  to  sixteen  without 
schooling  certificate. 

8  Absolute  under  twelve;  twelve  to  fourteen  without  schooling  certificate; 
fourteen  to  eighteen  without  age  and  schooling  certificate  except  as  to  those 
who  have  already  entered  into  employment.     Does  not  apply  to  mines. 

9  This  law  applies  to  mercantile  establishments,  etc.,  as  well. 

10  Absolute  under  fourteen,  or  under  sixteen  to  those  who  cannot  read  and 
write. 

II  Prohibition  is  absolute  under  the  age  of  fourteen,  and  applies  to  employ- 
ment in  mercantile  establishments  as  well,  or  stores  where  more  than  eight 
people  are  employed. 


224  POPULAR  LAW-MAKING 

cate,  which  is  required  of  all  those  under  sixteen  in  manu- 
facturing or  mechanical  employment;  in  Maryland,1  the  pro- 
hibition age  is  still  twelve,  and  the  law  applies  to  any  business 
except  farm  labor  in  the  summer;  in  Massachusetts,1  abso- 
lute prohibition  below  fourteen,  fourteen  to  sixteen  without 
age  or  schooling  certificate,  and  fourteen  to  eighteen,  who  can- 
not read  and  write;  in  Michigan,1  absolute  prohibition  under 
fourteen,  or  sixteen  without  written  permit;  in  Minnesota, 
the  same  ages,  but  the  law  applies  to  any  employment;  in 
Mississippi  the  ages  are  twelve  and  sixteen;  in  Missouri, 
absolute  prohibition  under  eight,  or  fourteen  without  school 
certificate.  New  Hampshire  l  lags  behind  and  has  only  an 
absolute  prohibition  to  children  under  twelve,  or  during 
school  under  fourteen,  or  under  sixteen  without  schooling 
certificate.  In  New  Jersey,  under  fourteen,  or  sixteen  with 
medical  certificate;  Nebraska  l  and  New  York,1  the  usual 
absolute  prohibition  under  fourteen,  or  under  sixteen  without 
employment  certificate;  North  Carolina,  under  twelve,  with 
an  exception  of  oyster  industries;  North  Dakota,1  fourteen, 
or  from  fourteen  to  sixteen  without  employment  certificate. 
In  Ohio,1  Oklahoma,  Oregon,1  Pennsylvania,1  and  Rhode 
Island,1  the  laws  are  practically  identical,  fourteen,  or  sixteen 
with  certificate  of  schooling.  South  Carolina,  absolute  pro- 
hibition only  under  twelve,  and  not  even  then  in  textile  estab- 
lishments if  the  child  has  a  dependency  certificate.  South 
Dakota,1  under  fifteen  when  school  is  in  session;  Tennessee, 
absolute  under  fourteen;  Texas,  under  twelve,  or  under  four- 
teen to  those  who  cannot  read  and  write  unless  the  child  has 
a  parent  to  support.  Vermont's  limitation  is  purely  educa- 
tional; no  child  under  sixteen  can  be  employed  in  factories 
or  mines  who  has  not  completed  nine  years  of  study.  In 
Virginia1  from  March  1,  1910,  there  is  absolute  prohibition 
under  fourteen  except  as  to  children  between  twelve  and 
fourteen  with  a  dependency  certificate;  Washington,  under 
fifteen  without  schooling  certificate,  or  in  stores,  etc.,  twelve. 

1  This  law  applies  to  mercantile  establishments,  etc.,  as  well. 


LABOR  IN  MINES  225 

West  Virginia,  twelve,  or  fourteen  when  school  is  in  session. 
Utah  and  Wyoming  have  no  legislation  except  as  to  mines, 
nor  do  Colorado  and  Idaho  protect  women  in  them.  Yet 
these  are  the  four  woman-suffrage  States. 

The  laws  as  to  labor  in  mines  are  naturally  more  severe; 
although  in  some  they  are  covered  by  the  ordinary  factory 
laws  (Colorado,  Florida,  Iowa,  Kansas,  Kentucky,  Louisi- 
ana, Michigan,  Minnesota,  North  Dakota,  Oregon,  South 
Carolina,  South  Dakota,  Tennessee,  Vermont,  Virginia, 
Wisconsin).  Female  labor  is  absolutely  forbidden  in  mines 
or  works  underground  in  Alabama,  Arkansas,  Illinois, 
Indiana,  Missouri,  New  York,  North  Carolina,  Oklahoma, 
Pennsylvania,  Utah,  Washington,  Wyoming,  and  West  Vir- 
ginia,— in  short,  in  most  of  the  States  except  Idaho,  Kansas, 
Iowa,  Kentucky,  Virginia,  Wyoming,  where  mines  exist; 
and  the  limit  of  male  labor  is  usually  put  at  from  fourteen 
(Alabama,  Arkansas,  Idaho,  Indiana,  Missouri,  Ohio,1  South 
Dakota,  Tennessee,  Utah,  Wyoming)  to  sixteen  (Illinois, 
Missouri,2  Montana,  New  York,  Oklahoma,  Pennsylvania, 
Washington);  or  twelve  (North  Carolina,  South  Carolina, 
West  Virginia),  even  in  States  which  have  no  such  legislation 
as  to  factories. 

The  laws  as  to  elevators,3  dangerous  machinery,4  or  dan- 
gerous employment  generally,5  are  even  stricter,  and  as  a 
rule  apply  to  children  of  both  sexes;  the  Massachusetts 
standard  being,  in  the  management  of  rapid  elevators,  the 
age  of  eighteen,  in  cleaning  machinery  in  motion,  fourteen, 
etc.;  in  other  States,  sixteen  to  eighteen.6  The  labor  of  all 
women  in  some  States,  and  of  girls  or  women  under  sixteen 
or  eighteen  in  other  States,  is  forbidden  in  occupations  which 


1  Fifteen  during  school  year. 

*  Of  those  who  can  read  and  write. 

1  Indiana,  Massachusetts,  New  York,  Rhode  Island,  Kansas,  Oregon. 

4  Connecticut,  Iowa,  Missouri,  Oregon,  Louisiana,  New  York. 

6  Illinois,  Kansas,  Kentucky,  Massachusetts,  Michigan,  Minnesota,  Missouri, 
Montana,  New  Jersey,  New  York,  Ohio,  Oklahoma,  Pennsylvania,  Wis- 
consin. 

6  Indiana,  Iowa,  Louisiana,  New  Jersey,  New  York,  South  Carolina. 


226  POPULAR  LAW-MAKING 

require  continual  standing.1  Females,2  or  minors,3  or  young 
children 4  are  very  generally  forbidden  from  working  or  wait- 
ing in  bar-rooms  or  restaurants  where  liquor  is  sold,  and  in 
a  few  States  girls  are  prohibited  from  selling  newspapers  or 
acting  as  messengers.5  The  Northern  States  have  a  usual 
age  limit  for  the  employment  of  children  in  ordinary  theatrical 
performances,  and  an  absolute  prohibition  of  such  employ- 
ment or  of  acrobatic,  immoral,  or  mendicant  employment. 
But  in  some  States  it  appears  there  is  only  an  age  limit  as 
to  these.6 

The  hours  for  railroad  and  telegraph  operators  are  limited 
in  several  States,  but  rather  for  the  purpose  of  protecting 
the  public  safety  than  the  employees  themselves.7  The  fol- 
lowing other  trades  are  prohibited  to  women  or  girls :  Boot- 
blacking,8  or  street  trades  generally9;  work  upon  emery 
wheels,  or  wheels  of  any  description  in  factories  (Michigan), 
and  in  New  York  no  female  is  allowed  to  operate  or  use 
abrasives,  buffing  wheels,  or  many  other  processes  of  pol- 
ishing the  baser  metals,  or  iridium;  selling  magazines  or 
newspapers  in  any  public  place,  as  to  girls  under  sixteen,10 
public  messenger  service  for  telegraph  and  telephone  com- 
panies as  to  girls  under  nineteen.11 

Leaving  now  the  question  of  general  employment,  where 
no  general  laws  limiting  time  or  price  would  seem  to  be 

1  Illinois  (under  sixteen),  Michigan   (all),  Minnesota   (sixteen),  Missouri 
(all),  New  York  (sixteen),  Ohio  (all),  Oklahoma  (sixteen),  Wisconsin  (six- 
teen), Colorado  (all  over  sixteen). 

2  Iowa,  Louisiana,  Michigan,  Missouri,  New  Hampshire,  New  York,  Ver- 
mont, Washington  (except  the  wife  of  the  proprietor  or  a  member  of  the 
family). 

3  Arizona,  Connecticut,  Georgia,  Pennsylvania,  Idaho,  Maryland,  Michi- 
gan, Missouri,  New  Hampshire,  South  Dakota,  Vermont. 

<  Florida,  Illinois,  Massachusetts,  Missouri,  Nebraska. 

8  New  York,  Oklahoma,  Wisconsin. 

8  California,  Kentucky,  Maine,  Maryland,  Michigan,  Missouri,  Montana, 
New  York,  Oregon,  Rhode  Island,  (sixteen  years);  Colorado,  District  of 
Columbia,  Florida,  Illinois,  Kansas,  New  Hampshire,  Virginia,  Wisconsin, 
Wyoming  (fourteen);  Connecticut,  Georgia,  (twelve);  Delaware,  Indiana, 
Louisiana,  Massachusetts,  West  Virginia  (fifteen);  Minnesota,  New  Jersey. 
Pennsylvania.  Washington  (eighteen). 

7  Colorado,  New  York. 

s  District  of  Columbia,  Wisconsin.        9  District  of  Columbia,  Wisconsin. 

10  New  York,  Oklahoma,  Wisconsin.     "  Washington. 


HOURS  IN  MISCELLANEOUS  OCCUPATIONS      227 

constitutional,  except  in  certain  cases  as  to  the  employ- 
ment of  women  and  in  all  cases  that  of  children,  and  going 
to  special  occupations,  we  shall  find  quite  a  different  prin- 
ciple; for  in  a  special  occupation  known  to  be  dangerous  or 
unhealthy,  certainly  if  dangerous  or  unhealthy  to  the  general 
public,  it  has  always  been  the  custom  and  has  always  been 
constitutional  with  us  to  control  conditions  by  statute.  The 
question  of  what  is  a  dangerous  or  unhealthy  occupation  to 
the  public  rather  than  merely  to  the  persons  employed  is,  of 
course,  a  difficult  one;  and  the  Supreme  Court  of  the  United 
States  have  split  so  closely  on  this  point  that  they  have  in 
Utah  decided  that  mining  was  an  occupation  dangerous  to 
the  public  health,  and  in  New  York  that  the  baking  of  bread 
was  not.  That  is  to  say,  that  the  condition  of  bakeshops  bore 
no  relation  to  the  general  health  of  the  community.  One 
might,  perhaps,  have  expected  that  they  would  have  decided 
each  case  the  other  way;  but  we  must  take  our  decisions  as 
we  get  them  from  the  Supreme  Court,  reserving  our  dissent 
for  the  text-books.  In  any  event,  it  can  be  seen  that  the  line 
is  very  close,  certainly  in  the  case  of  adult  male  labor.  The 
same  statute  as  to  mines  existed  in  Colorado  that  the  United 
States  Supreme  Court  sustained  in  Utah.  The  Colorado 
Supreme  Court  had  declared  it  unconstitutional,  and  after 
the  decision  of  the  United  States  Supreme  Court  they  con- 
tinued to  declare  it  unconstitutional,  simply  saying  that  the 
United  States  Supreme  Court  was  wrong.  Anyhow,  it  is 
obvious  that  in  trades  which  involve  a  great  mass  of  the  peo- 
ple, or  affect  the  whole  community,  or  particularly  where 
there  are  definite  dangers,  such  as  noxious  vapors  or  tuber- 
culosis-breeding dust,  it  will  be  constitutional,  as  it  is  com- 
mon sense,  to  limit  the  conditions  and  even  the  hours  of 
labor  of  women  or  men,  as  well  as  children.  Students  inter- 
ested in  such  matters  will  find  the  universal  legislation  of 
the  civilized  world  set  forth  in  the  invaluable  labor-laws 
collection  of  the  government  of  Belgium;  and  he  will  find 
that  all  countries  of  the  world  do  regulate  the  hours  of  labor 


228  POPULAR  LAW-MAKING 

as  well  as  the  conditions,  in  all  such  trades,  and  we  should 
not  remain  alone  in  refusing  to  do  so. 

The  difficulty  of  regulating  the  hours  of  farm  labor  is,  of 
course,  obvious,  and  so  far  as  I  know,  no  attempt  has  yet 
been  made.  The  same  thing  remains  still  true  of  domestic 
labor,  though  it  has  been  more  questioned.  It  should  be 
noted  that  both  domestic  labor  and  farm  labor  belong  to  the 
class  of  what  we  call  indefinite  service.  Now,  indefinite  ser- 
vice must  always  be  regulated  very  carefully  as  to  the  length 
of  the  contract,  which  is  never  to  be  indefinite;  that  is  to 
say,  if  it  be  both  indefinite  in  the  services  rendered  and  in 
the  time  during  which  they  are  to  last,  it  is  in  no  way  distin- 
guishable from  slavery.  For  instance,  in  Indiana,  many 
years  before  the  Civil  War,  there  was  an  old  negro  woman 
who  was  induced  to  sign  a  contract  to  serve  in  a  general  way 
for  life;  that,  of  course,  was  held  to  be  slavery.  More  re- 
cently the  United  States  Supreme  Court  has  held  that  a  con- 
tract imposed  upon  a  sailor  whereby  he  agreed  to  ship  as  a 
mariner  on  the  Pacific  coast  for  a  voyage  to  various  other 
parts  of  the  world  and  thence  back  was  a  contract  so  indefi- 
nite in  length  of  time  as  to  be  unenforceable  under  free  prin- 
ciples, although  a  sailor's  contract  is  one  which  in  a  peculiar 
way  carries  with  it  indefinite  service.  And  a  contract  "a 
tout  faire"  even  for  a  week  might  be  held  void. 

In  all  these  matters  the  labor  of  women,  and  even  that  of 
children,  will  very  often  control  the  hours  of  labor  of  men; 
for  instance,  in  the  mills  of  New  England,  more  than  half 
the  labor  is  not  adult  male;  yet  when  any  large  class  of  the 
mill's  operatives  stop,  the  whole  mill  must  stop;  conse- 
quently, a  law  limiting  the  labor  of  women  and  children  to 
fifty-six  hours  a  week  will  be  in  practice  enforced  upon  the 
adult  males  employed  in  the  same  mill. 

Continental  legislation  has  gone  far  beyond  us  in  all  these 
important  particulars.  In  most  countries  the  conditions  sur- 
rounding the  labor  of  women,  particularly  married  women, 
are  carefully  regulated  by  law.  She  is  not  allowed  to  go 


SANITARY  RESTRICTIONS  ON  FEMALE  LABOR  229 

back  to  the  mill  for  a  certain  period  after  childbirth,  and 
in  many  more  particular  respects  her  health  is  carefully 
looked  after.  Such  legislation  would  possibly  be  impossi- 
ble to  enforce  with  our  notions  in  America.  The  most 
interesting  of  all  is  perhaps  the  attempt  made  in  the  State  of 
Connecticut  within  a  few  years  to  improve  social  conditions 
by  providing  that  no  married  woman  should  be  employed 
in  factories  at  all.  The  bill  was  not,  of  course,  carried,  but 
it  raises  a  most  interesting  sociological  question.  Ruskin 
probably  would  have  been  in  favor  of  it.  He  described  as 
the  very  last  act  of  modern  barbarism  for  the  woman  to  be 
made  "to  shriek  for  a  hold  of  the  mattock  herself.'*  It 
was  argued  in  Connecticut  that  the  employment  of  married 
women  injured  the  health  of  the  children,  which  is  perfectly 
true.  Indeed,  the  death-rate  in  England  is  very  largely 
determined  by  the  fact  whether  their  mothers  are  employed 
in  mills  or  not.  It  was  also  argued  that  her  competition 
with  man  merely  halved  his  wages;  that  if  no  women  were 
employed,  the  men  would  get  much  higher  wages.  On  the 
other  side  it  was  argued  that  the  effect  of  the  law  would  be 
largely  immoral  because  it  would  simply  prevent  women 
from  getting  married.  Knowing  that  after  marriage  they 
would  get  no  employment,  they  would  simply  dispense  with 
the  marriage  ceremony;  for  it  is  obvious  that  under  such 
legislation  a  man  living  with  a  woman  unmarried  could  get 
double  wages,  which  would  be  halved  the  moment  he  made 
her  his  wife.  This  last  was  evidently  the  view  which  pre- 
vailed; and  so  far  as  I  know,  no  such  law  has  in  the  civilized 
world  yet  been  enacted,  though  there  is  doubtless  a  much 
stronger  social  prejudice  against  women  entering  ordinary 
employments  in  some  countries  than  in  others. 

The  constitutional  question  underlying  all  this  discussion 
was  perhaps  best  set  forth  by  an  experiment  of  the  late  Mr. 
Edward  Atkinson,  which  he  always  threatened  to  bring  into 
the  courts,  but  I  believe  did  not  do  so.  "An  Englishman's 
house  is  his  castle";  an  English  woman's  house  is  her  castle. 
Atkinson  proposed  that  a  woman  of  full  age,  living  in  her  own 


230  POPULAR  LAW-MAKING 

house,  should  connect  her  loom  or  spindles  by  electric  wire 
to  the  nearest  mill  or  factory,  and  then  proceed  to  weave  or 
spin  more  than  the  legal  limit  of  nine  hours  per  day.  Would 
the  state,  under  the  broadest  principles  of  English  consti- 
tutional liberty,  have  the  right  to  come  in  and  tell  her  not  to 
do  so;  particularly  when  the  man  in  the  next  house  remained 
free?  Up  to  this  time  there  is  no  doubt  that  a  factory,  a 
large  congregation  of  labor,  under  peculiar  conditions,  pre- 
sents a  different  question  and  a  different  constitutional 
aspect  from  that  of  the  individual.  This,  indeed,  is  the 
principle  which  must  justify  the  constitutional  regulation  of 
sweat-shops,  as  to  which  we  will  speak  next. 

The  sweat-shop  is  the  modern  phrase  for  a  house,  fre- 
quently a  dwelling,  tenement,  or  home,  not  a  factory,  and 
not  under  the  ownership  or  control  of  the  person  giving  out 
the  employment. 

Now  a  factory  may  obviously  be  regulated  under  ordinary 
police  principles;  but  when  the  first  great  case  came  up  as  to 
regulating  labor  in  a  man's  own  home,  even  though  it  was 
but  one  floor  of  a  tenement,  it  was  decided  by  the  highest 
court  of  New  York  to  be  unconstitutional.  The  case  was 
one  concerning  the  manufacture  of  cigars,  which  by  the 
statute  was  prohibited  in  tenement  houses  on  any  floor 
partly  occupied  for  residence  purposes.1  Nevertheless  it 
may  be  questioned  whether,  with  the  advancing  social  feel- 
ing in  such  matters,  legislation  would  not  be  now  sustained 
when  clearly  aimed  at  sanitary  purposes,  even  though  it 
interfered  with  trades  conducted  in  a  man's  dwelling  house. 
I  hold  that  it  is  quite  as  possible  for  the  arm  of  the  state  to 
interfere  to  prevent  the  baking  of  bread  in  bedrooms,  for 
instance,  as  it  is  to  seize  upon  clothing  which  has  been 
exposed  to  scarlet  fever.  A  man's  home,  under  modern 
theories,  is  no  more  sacred  against  this  police  power  than  is 
his  body  against  vaccination;  and  the  last  has  been  decided 
by  the  Supreme  Court  of  the  United  States.2 

1  In  re  Jacobs,  98  N.  Y.  98.  See  the  author's  "  Handbook  to  the  Labor 
Law  of  the  U.  S.,"  p.  151.  2  Massachusetts  v.  Jacobson,  197  U.  S.  11. 


LAWS  AGAINST  SWEAT-SHOPS  231 

At  all  events,  legislation  may  be  aimed  against  sweat- 
shops which  in  any  sense  resemble  factories — that  is,  where 
numbers  of  persons  not  the  family  of  the  occupier  are  en- 
gaged in  industrial  labor;  so  in  Pennsylvania  it  has  been 
extended  to  jurisdiction  over  shops  maintained  in  the  back 
yards  of  tenements;  while  in  most  States  the  statute  applies 
to  any  dwelling  where  any  person  not  a  member  of  the 
family  is  employed,  and  general  legislation  against  sweat- 
shops already  exists  in  the  twelve  north-eastern  industrial 
States  from  Massachusetts  to  Missouri  and  Wisconsin,  leav- 
ing out  only  Rhode  Island. 

The  Massachusetts  law  as  at  present  forbids  work  upon 
clothing  except  by  members  of  the  family  in  any  tenement 
without  license,  and  thereupon  subjects  the  premises  to  the 
inspection  of  the  police,  and  registers  of  all  help  must  be 
kept.  Whoever  offers  for  sale  clothing  made  in  a  tenement 
not  licensed  must  affix  a  tag  or  label  two  inches  long  bearing 
the  words  "  Tenement  Made,"  with  the  name  of  the  State 
and  city  or  town  in  which  the  garment  was  made.  More- 
over, any  inspector  may  report  to  the  State  board  of  health 
that  ready-made  clothing  manufactured  under  unhealthy 
conditions  is  being  shipped  into  the  State,  which  "shall 
thereupon  make  such  orders  as  the  public  safety  may  re- 
quire." l  In  New  York  the  law  applies  to  the  manufacture 
of  many  articles  besides  clothing,  such  as  artificial  flowers, 
cigarettes,  cigars,  rubber,  paper,  confectionery,  preserves, 
etc.  A  license  may  be  denied  to  any  tenement  house  if  the 
records  show  that  it  is  liable  to  any  infectious  or  communi- 
cable disease  or  other  unsanitary  conditions.  Articles  not 
manufactured  in  tenements  so  licensed  may  not  be  sold  or 
exposed  for  sale,  and  there  is  the  same  law  as  in  Massachu- 
setts as  to  goods  coming  in  from  outside  the  State,  and  there 
is  the  same  exemption  of  apartments  occupied  by  members 
of  the  family,  and  even  then  it  appears  that  they  are  sub- 
ject to  the  visitation  of  the  board  of  health  and  must  have  a 
»  Massachusetts  R.  L.,  106,  sees.  56  to  60  inclusive. 


232  POPULAR  LAW-MAKING 

permit.  The  Pennsylvania  law  is  similar  to  the  New  York 
law,  and  in  addition,  all  persons  are  forbidden  to  bargain 
for  sweat-shop  labor,  that  is,  labor  in  any  kitchen,  living- 
room,  or  bed-room  in  any  tenement  house  except  by  the  family 
actually  resident  therein,  who  must  have  a  certificate  from 
the  board  of  health.  The  Wisconsin  law  apparently  applies 
to  persons  doing  the  work  in  their  own  homes,  who  must 
have  a  license  like  anybody  else,  and  the  owner  of  the  build- 
ing is  liable  for  its  unlawful  use.  The  Illinois  and  Mary- 
land laws  are  similar  to  the  New  York  law,  while  the  Michi- 
gan statute  resembles  that  of  Wisconsin,  apparently  applying 
to  members  of  the  family  as  well.  The  Missouri  law  forbids 
the  manufacture  of  clothing,  etc.,  in  tenements  by  more 
than  three  persons  not  immediate  members  of  the  family, 
while  the  New  Jersey  and  Connecticut  statutes  content 
themselves  with  making  such  manufacture  by  persons  not 
members  of  the  family  subject  to  inspection. 

It  is  a  curious  commentary  that  the  very  dream  of  the 
social  reformers  of  only  twenty  years  ago  is  so  rudely  dis- 
pelled by  the  march  of  events;  for  in  the  late  nineties  it  was 
the  hope  of  the  enthusiast,  particularly  the  student  in  elec- 
trical science,  that  the  factory  system  might  in  time  be  done 
away  with,  and  by  the  use  of  power  served  from  long  or 
short  distance  over  wires  to  a  man's  own  habitation,  all  the 
industries  of  manufacture  might  be  carried  on  in  a  man's 
own  home — just  as  used  to  be  the  case  with  the  spinners  and 
weavers  of  olden  time.  Far  from  being  a  hope,  it  turns  out 
that  this  breeds  the  very  worst  conditions  of  all,  and  the 
most  difficult  to  regulate  by  law.  For  modern  homes  for 
the  most  part  are  not  sanitary  dwellings  in  the  country,  but 
single  floors  or  parts  of  floors  in  huge  tenement  houses  in 
great  cities.  It  is  probable  to-day,  therefore,  that  there  is  a 
perfect  reversal  of  opinion,  and  that  the  social  reformer  now 
dreams  of  a  world  where  no  work  is  permitted  in  the  home, 
other  than  ordinary  domestic  avocations,  but  all  is  com- 
pelled to  be  done  in  factories  under  the  supervision  of  public 


LAWS  TO  CONTROL  LABOR  CONDITIONS        233 

authorities — a  splendid  example  of  the  dangers  of  hasty 
legislation;  for  had  we  carried  into  law  the  eager  desire  of 
the  reformers  of  only  twenty  years  since,  we  should,  it  ap- 
pears, have  been  on  a  hopelessly  wrong  track. 

It  should  be  noted,  however,  that  the  reform  of  conditions 
is  very  largely  arrived  at  by  a  different  path — that  of  the 
building  laws  in  our  cities.  No  more  arbitrary  rule  exists 
to-day  or  was  ever  in  history  than  the  despotic  sway  of  a 
board  or  commission  created  under  modern  police-power 
ideas.  In  everything  else  you  have  a  right  to  a  hearing,  if 
not  an  appeal  to  the  common-law  courts  and  a  jury;  but  the 
power  of  a  building  inspector  is  that  of  an  Oriental  despot. 
He  can  order  you  summarily  to  do  a  thing,  or  do  it  himself; 
or  destroy  or  condemn  your  property;  and  you  have  no 
redress,  nor  compensation,  nor  even  a  lawsuit  to  recover 
compensation.  Therefore,  if  the  sweat-shop  reformers  may 
not  constitutionally  regulate  the  conditions  and  business  of 
sweating  so  far  as  they  would  like  to  go,  they  can  turn  about 
and  directly  regulate  the  actual  building  of  residences  where 
the  trade  is  carried  on.  They  can  require  not  only  so  many 
cubic  feet  of  air  per  person  in  the  sweat-shop,  but  so  many 
cubic  feet  of  air  per  person  in  every  bedroom;  as  Ruskin 
said,  not  only,  of  grouse,  so  many  brace  to  the  acre,  but  of 
men  and  women — so  many  brace  to  the  garret.  A  Califor- 
nia law 1  once  made  it  a  criminal  offence  for  any  person  to 
sleep  with  less  than  one  thousand  feet  of  air  in  his  room  for 
his  own  exclusive  use!  It  is  indeed  a  crime  to  be  poor. 

This  legislation  to  reform  sweat-shops  is  a  field  which 
has  been  almost  entirely  cultivated  by  what  I  have  termed 
the  moral  reformers,  with  little  or  no  help  from  organized 
labor.  One's  observation  is  that  organized  labor  has  been 
mainly  concerned  with  the  price  of  wages,  the  length  of 
hours,  and  with  the  closed  shop ;  it  has  devoted  very  little  of 
its  energies  to  factory  or  trade  conditions,  except,  indeed,  that 
it  has  been  very  desirous  of  enforcing  the  union  label,  on 
i See  Ah  Kow,  Nunan,  5  Sawyer,  552. 


234  POPULAR  LAW-MAKING 

which  it  asserts  that  union-made  goods  are  always  made 
under  sanitary  and  moral  conditions,  and  implies  that  the 
goods  of  "scab"  manufacturers  are  not  so. 

The  usual  sweated  trades  in  this  country  are  the  manu- 
facture of  clothing,  underwear,  tobacco,  and  artificial  flowers. 
There  has  also  been  considerable  regulation  of  laundries 
and  bakeries,  but  not  because  they  are  what  is  commonly 
called  sweated  trades. 

The  bulk  of  factory  legislation  is  too  vast  for  more  than 
mention  in  a  general  way.  It  fills  probably  one-fourth  in 
mass  of  the  labor  laws  of  the  whole  country,  and  applies  in 
great  and  varying  detail  to  the  general  condition  of  factories, 
workshops,  and  in  most  States  to  large  stores — department 
stores — using  the  word  in  the  American  sense.  It  may  be 
broadly  analyzed  as  legislation  for  the  construction  of  fac- 
tories, for  fresh  air  in  factories,  for  general  sanitary  con- 
ditions, such  as  the  removal  of  dust  and  noxious  gases, 
white-washing,  sanitary  appliances,  over-crowding,  stair-cases, 
fire-escapes,  and  the  prohibition  of  dangerous  machinery.  As 
has  been  said,  it  was  begun  in  Massachusetts  in  the  fifth 
decade  of  the  last  century,  based  originally  almost  entirely 
on  the  English  factory  acts,  which  were  bitterly  attacked  by 
the  laissez-faire  school  of  the  early  nineteenth  century,  but 
soon  vindicated  themselves  as  legitimate  legislation  in  Eng- 
land, although  not  even  there — still  less  in  our  States — have 
we  gone  so  far  as  the  Continental  countries. 

Closely  connected  with  this  may  be  mentioned  that  vast 
domain  of  law  which  is  known  as  employers'  liability. 
Under  the  old  strict  common-law  rule,  a  servant  or  em- 
ployee could  never  recover  damages  for  any  injury  caused 
in  whole  or  in  part  by  his  own  negligence,  by  the  negligence 
of  a  fellow  servant  or  even  by  defective  machinery,  unless 
he  was  able  to  prove  beyond  peradventure  that  this  existed 
known  to  the  employer  and  was  the  sole  and  direct  cause  of 
the  accident.  As  is  matter  of  common  knowledge,  the  ten- 
dency of  all  modern  legislation,  particularly  the  English  and 


FACTORY  LAWS  AND  EMPLOYERS'  LIABILITY     235 

our  own,  has  been  to  chip  one  corner  after  another  off  these 
principles.  The  fellow-servant  rule  has  been  very  gener- 
ally abolished  by  statute,  or  in  many  States  fellow  servants 
have  been  defined  and  divided  into  classes  so  that  the  master 
is  not  relieved  of  liability  when  the  injury  to  the  servant  is 
caused  by  the  negligence  of  a  servant  not  in  actual  fact  his 
fellow,  i.  e.,  employed  with  him  in  his  own  particular  work. 
In  like  manner  the  exemption  for  contributory  negligence 
has  been  pared  down  and  the  liability  for  dangerous  or 
defective  appliances  increased,  practically  to  the  point  that 
the  master  becomes  the  insurer  of  his  machinery  in  this 
particular.  The  recent  English  statute  goes  to  the  length 
of  putting  the  liability  on  the  employer  or  on  an  employment 
fund  in  all  cases. 

The  writer  is  strongly  of  opinion  that  this  radical  reform 
is,  so  far  as  constitutional,  the  end  to  be  aimed  at.  The 
immense  expense  and  waste  caused  by  present  litigation,  the 
complete  uncertainty  both  as  to  liability  and  as  to  the  amount 
of  damages,  the  general  fraud,  oppression,  and  deceit  that  the 
present  system  leads  to,  and  finally  its  hideous  waste  and 
extravagance,  are  all  reasons  for  doing  away  with  it  entirely. 
He  believes  that  for  the  employer's  own  benefit  if  there  were 
a  statute  with  a  definite  scale  of  damages,  providing  definitely, 
and  as  part  of  the  employment  contract  if  necessary,  with  a 
certain  small  deduction  from  the  wages,  that  there  should  be 
insurance,  that  the  master  should  be  actually  liable  on  a  fixed 
scale  for  all  injuries  suffered  while  in  his  employment  not  in 
disobedience  to  his  orders  or  solely  and  grossly  negligent, 
it  would  be  far  better  both  for  employer  and  employee.  To- 
day it  is  possible  that  in  many  cases  the  employee  gets  no 
damages  or  is  cheated  out  of  them,  or  they  are  wasted  in  liti- 
gation expense  (the  Indiana  Bar  Association  reported  this 
year  that  only  about  thirty  per  cent,  of  the  damages  actually 
recovered  of  the  employer  reaches  the  party  injured) ;  while 
on  the  other  hand  the  master  can  never  know  for  how  much 
he  is  going  to  be  liable,  and  in  the  rare  cases  which  get  to 


236  POPULAR  LAW-MAKING 

a  jury  they  are  apt  to  find  an  excessive  verdict.  It  is  the  cus- 
tom with  most  gentlemen  to  pay  a  reasonable  allowance  to 
any  servant  injured  while  in  their  employ,  unless  directly  dis- 
obedient of  orders.  There  is  no  practical  reason  why  this 
moral  obligation  should  not  be  embodied  in  a  statute  and 
extended  to  everybody.  The  scale  of  damages  should  of 
course  be  put  so  low  as  not  to  encourage  persons  to  expose 
themselves,  still  less  their  own  children,  to  injury  in  the  hope 
of  getting  monetary  compensation.  But  although  in  India  we 
are  told  the  natives  throw  themselves  under  the  wheels  of 
automobiles,  it  is  not  probable  that  in  American  civilization 
there  would  be  serious  abuse  of  the  law  in  this  particular. 
Five  thousand  dollars,  for  instance,  for  loss  of  life  or  limb 
or  eye,  with  a  scale  going  down,  as  does  the  German  law, 
to  a  mere  compensation  for  time  lost  and  medical  attend- 
ance in  ordinary  injuries,  would  be  sufficient  in  equity 
and  would  surely  not  encourage  persons  voluntarily  to  maim 
themselves. 

The  next  great  line  of  legislation  concerns  the  mode  of 
payment  of  wages.  The  amount,  as  has  been  said,  is  never 
regulated;  but  it  has  been  customary  for  nearly  a  century 
for  the  law  to  require  payment  in  cash,  or  at  least  that  it  be 
not  compulsorily  made  in  goods  or  supplies,  or  still  worse  in 
store  orders.  This  line  of  legislation  is  commonly  known  as 
the  anti-truck  laws  and  exists  in  most  States,  but  has  been 
strenuously  opposed  in  the  South  and  Southwest  as  inter- 
fering with  the  liberty  of  contract,  so  that  in  those  more 
conservative  States  the  courts  have  very  often  nullified  such 
legislation.  It  may  be  summarized  as  follows: 

(1)  Weekly  or  time  payment  laws.     These  exist  in  more 
than  half  the  States,  and  are  always  constitutional  as  to 
corporations,  but  are  possibly  unconstitutional  in  all  States 
except  Massachusetts  when  applied  to  private  employers. 

(2)  Cash-payment  laws,  requiring  payments  to  be  made 
in  actual  money.     These  statutes  are  commonly  combined 
with  those  last  mentioned  and  are  subject  to  the  same  con- 


FACTORY  STORES  AND  TENEMENTS  237 

stitutional  objections.  As  a  part  of  them,  or  in  connection 
with  them,  we  will  put  the  ordinary  anti-truck  laws — that  is, 
legislation  forbidding  payment  in  produce  or  supplies  or 
commodities  of  any  kind.  Finally,  the  store-order  laws  for- 
bidding payment  to  be  made  in  orders  for  indefinite  supplies 
on  any  particular  store,  still  less  on  a  store  owned  or  operated 
by  the  company  or  employer.  Such  laws  have  sometimes 
been  held  unconstitutional  in  all  particulars,  sometimes 
when  they  apply  only  to  certain  industries,  as,  for  instance, 
mines.  In  the  writer's  opinion  they  are  never  constitutional 
when  applied  to  corporations,  nor  are  they  class  legislation 
when  applied  to  mines,  for  the  reason  that  it  is  well  known 
that  mines  are  situated  in  remote  districts  where  there  are 
few  stores,  and  that  the  maintenance  of  a  company  store 
has  not  only  led  to  much  cheating  but  to  an  actual  condition 
of  peonage.  That  is  to  say,  the  miners  would  be  held  in 
debt  and  led  to  believe  that  they  could  not  leave  the  mine 
or  employment  until  the  debt  was  liquidated.  Belonging 
usually  to  the  most  ignorant  class,  it  is  matter  of  common 
knowledge  that  this  has  been  done,  and  that  Poles,  negroes, 
or  others  of  the  more  recent  immigrants  have  been  perma- 
nently kept  in  debt  to  the  company  store  or  by  advances 
or  in  other  ways,  as  for  rent  or  board. 

(3)  Closely  allied  to  such  legislation,  of  course,  is  the 
legislation  against  factory  tenements  or  dwellings,  but  there 
is  probably  less  real  abuse  here,  and  therefore  a  greater  con- 
stitutional objection  against  laws  forbidding  houses,  espe- 
cially model  houses,  to  be  built  and  rented  by  the  employer. 
Such  efforts,  unfortunately,  have  not  usually  been  popular. 
Far  from  helping  labor  conditions,  they  seem  to  have  caused 
great  resentment,  as  was  notably  the  case  in  Pullman,  Illi- 
nois, and  very  recently  in  Ludlow,  Massachusetts.  It  may 
be  that  the  American  temperament  prefers  its  own  house, 
and  resents  being  compelled  to  live  in  a  house,  however 
superior,  designed  for  him  and  assigned  to  him  by  his  em- 
ployer. 


238  POPULAR  LAW-MAKING 

(4)  The  next  matter  which  has  evoked  the  attention  of 
philanthropists  and  the  angry  resentment  of  the  persons 
they  supposed  they  were  trying  to  benefit,  is  that  of  the  bene- 
fit or  company  insurance  or  pension  funds.  The  principle 
of  withholding,  or  contracting  with  the  employees  to  with- 
hold, a  small  proportion  of  their  wages  weekly  or  monthly 
to  go  into  an  endowment  or  benefit  fund,  even  when  the 
company  itself  contributes  as  much  or  more,  was  instituted 
with  sanguine  hopes  some  forty  years  ago,  first  in  the  great 
Calumet  &  Hecla  Copper  Company,  and  then  in  some  of 
the  larger  railroads;  and  was  on  the  point  of  meeting  general 
acceptance  when  it  evoked  the  hostility  of  organized  labor, 
which  secured  legislation  in  Ohio  and  other  States  making 
it  a  crime,  or  at  least  unlawful,  for  either  side  to  make  a  con- 
tract whereby  any  part  of  the  wages  was  taken  or  withheld 
for  such  purposes.  The  German  theory  of  old-age  pensions 
is  based  upon  this  principle;  but  it  is  so  unpopular  in  America 
that  frequently  in  the  South,  when  things  are  done  for  the 
workmen,  they  are  hardly  permitted  to  know  it;  a  pretence, 
at  least,  is  made  that  their  own  contributions  are  the  entire 
support  of  the  hospital,  library,  reading-room,  or  whatever  it 
may  be,  when,  in  fact,  the  lion's  share  is  borne  by  the  com- 
pany. There  is  no  doubt  that  the  American  laborer  resents 
being  done  good  to,  except  by  himself;  and  is  organized  to 
resent  any  system  of  beneficence  to  the  point  of  making  it 
actually  prohibited  by  the  law. 

Much  of  the  legislation  described  in  this  chapter  is  wise, 
and  probably  all  of  it  is  wise  in  intention.  Yet,  in  closing, 
one  cannot  resist  calling  attention  to  the  unforeseen  dangers 
that  always  attend  legislation  running  counter  to  the  broad 
general  basis  of  Anglo-Saxon  civilization.  One  need  make 
no  fetich  of  freedom  of  contract  to  believe  that  laws  aimed 
against  it  may  hit  us  in  unexpected  ways.  For  one  famous 
example,  the  cash  weekly-payment  law  in  Illinois  existed  in 
1893.  In  that  year  there  was  a  great  panic.  Nobody  could 
obtain  any  money;  mills  and  shops  were  closing  down,  par- 


INTERFERENCE  WITH  FREE  CONTRACT         239 

ticularly  in  Chicago.  Everybody  was  being  thrown  out  of 
employment,  and  distress  to  the  point  of  starvation  ensued. 
In  the  very  worst  days  of  that  panic  some  of  the  largest  and 
most  charitable  employers  of  labor  met  their  employees  in  a 
monster  mass  meeting,  and  reported  that  while  they  could 
not  pay  in  full  and  nothing  apparently  was  in  prospect  but 
an  actual  shutdown,  they  had  succeeded  in  getting  enough 
cash  to  keep  all  their  employees,  provided  they  would  take 
weekly  half  what  was  owing  to  them  in  money,  and  the  short- 
time  notes  or  obligations  of  the  firms,  or  even  of  banks,  for 
the  remainder.  The  offer  evoked  the  greatest  enthusiasm, 
was  unanimously  accepted  by  the  thousands  of  employees, 
and  amid  great  rejoicing  the  meeting  adjourned; — only  to 
find  by  the  advice  of  their  counsel  next  morning  that  under 
the  laws  of  the  State  of  Illinois  such  a  settlement  was  made  a 
crime,  and  that  for  every  workman  who  received  his  wages 
each  week  only  half  in  cash,  the  employer  would  be  liable  to 
a  one-hundred-dollar  fine,  and  thirty  days'  imprisonment. 

The  great  reform,  not  of  legislation  but  of  condition,  in 
the  labor  question,  is  unquestionably  to  arrive  at  a  status  of 
contract.  Hitherto  the  principle  that  seems  to  have  been 
accepted  by  organized  labor,  at  least  in  America,  is  that  of 
being  organized  for  purposes  of  offence,  not  for  defence; 
like  a  mob  or  rabble  which  can  attack  united,  but  retreats 
each  for  himself;  which  demands,  but  cannot  give;  which, 
like  a  naughty  child  or  person  non  compos,  is  not  responsible 
for  its  own  actions.  Still  there  is,  as  yet,  no  legislation  aimed 
at  or  permitting  a  definite  contract  in  ordinary  industrial 
employment;  although  there  are  a  few  laws  which  provide 
that  when  the  employee  may  not  leave  without  notice,  the 
employer  may  not  discharge  him  without  a  corresponding 
notice  except  for  cause. 

As  relating  mainly  to  strikes  or  concerted  action,  the  ques- 
tion of  arbitration  and  conciliation  laws  will  be  left  for  the 
next  chapter;  but  we  may  close  our  discussion  of  individual 
legislation  by  calling  attention  to  the  striking  attempt  to 


240  POPULAR  LAW-MAKING 

revive  mediaeval  principles  of  compulsory  labor  in  certain 
avocations  and  in  certain  portions  of  this  country.  The 
cardinal  rule  that  the  contract  of  labor  may  not  be  compelled 
to  be  carried  out,  that  an  injunction  will  not  issue  to  perform 
a  labor  contract,  or  even  in  ordinary  cases  against  breaking  it, 
is,  of  course,  violated  by  any  such  legislation;  but  ingenious 
attempts  have  been  made  to  get  around  it  in  the  Southern 
States. 

This  world-wide  problem  is  really  rather  a  racial  problem 
than  an  economic  one  amongst  Anglo-Saxons.  The  inability 
of  the  African  and  the  Caucasian  to  live  side  by  side  on  an 
equality  largely  results  from  this  economic  question  [which, 
broadly  stated,  is  that  the  Caucasian  is  willing  to  work 
beyond  his  immediate  need  voluntarily  and  without  physical 
compulsion;  the  African  in  his  natural  state  is  not.  The 
American  Indian  had  the  same  prejudice  against  manual 
labor;  but  rather  that,  as  a  gentleman,  he  thought  himself 
above  it;  and  his  character  was  such  that  he  always  success- 
fully resisted  any  attempts  at  enslavement  or  even  compul- 
sory service.  The  negro,  on  the  other  hand,  is  not  above 
such  work,  but  merely  is  lazy  and  needs  the  impulse  of  actual 
hunger  or  the  orders  of  an  overseer.  We  are,  of  course, 
speaking  of  the  mass  of  the  people,  in  their  natural  state, 
before  any  enlightenment  gained  by  contact  with  more  civil- 
ized races.  The  whole  question  is  discussed  on  its  broadest 
lines  by  Mr.  Meredith  Townsend  in  his  luminous  work, 
"Asia  and  Europe."  He  seems  hopelessly  to  conclude  that 
there  is  no  possibility  of  white  and  black  permanently  living 
together  as  part  of  one  industrial  civilization  unless  the  latter 
race  is  definitely  under  the  orders  of  the  former.  Without 
assenting  to  this  view  it  may  be  admitted  that  it  is  one  which 
has  very  largely  prevailed  in  the  Southern  States,  and  the 
difficulty  there  is,  of  course,  with  agricultural  labor.  So 
fast  as  the  negro  can  be  made  a  peasant  proprietor,  the 
question  seems  to  be  in  a  measure  solved;  but  it  is  alleged  to 
be  almost  impossible  to  get  the  necessary  labor  from  negroes 


THE  PEONAGE  LAWS  241 

when  done  for  others,  under  contract  or  otherwise.  There 
is,  therefore,  a  mass  of  recent  legislation  in  the  Southern 
States  which  we  may  entitle  the  peonage  laws,  which  range 
from  the  highly  objectionable  and  unconstitutional  statute 
compelling  a  person  to  carry  out  his  contract  of  labor  under 
penalty  as  for  a  misdemeanor,  to  the  more  ingenious  statutes 
which  get  at  the  same  result  by  the  indirect  means  of  declar- 
ing a  person  guilty  of  breaking  a  contract  under  which  he 
has  acquired  money  or  supplies  punishable  as  for  fraud. 
There  are  also  statutes  applying  and  very  greatly  extending 
the  old  common-law  doctrine  of  loss  of  service;  making  it 
highly  criminal  for  a  neighbor  to  incite  a  servant  or  employee 
to  break  his  contract  or  even  to  accept  the  work  of  a  laborer 
without  ascertaining  that  he  has  not  broken  such  contract, 
as,  for  instance,  by  a  certificate  of  discharge  from  his  last 
master.  These  laws,  it  will  be  seen,  differ  in  no  particular 
from  the  early  labor  laws  in  England,  which  we  carefully 
summarized  for  this  purpose;  except,  indeed,  that  they  do 
stop  short  of  the  old  English  legislation  which  provided  that 
when  a  laborer  broke  his  contract  or  refused  to  work  he 
could  be  committed  before  the  nearest  magistrate  and  sum- 
marily punished.  Even  this  result,  however,  has  been  ar- 
rived at  by  the  more  circuitous  and  ingenious  legislation  of 
Southern  States  such  as  in  Georgia,  cited  in  the  charge  to 
the  Grand  Jury.1  The  principle  of  this  elaborate  machinery 
is  always  that  money  advances,  or  supplies,  or  a  lease  of  a 
farm  for  a  season  or  more,  or  the  loan  of  a  mule,  having  first 
been  made  under  written  contract  to  the  negro,  the  breaking 
of  such  contract  or  the  omission  to  repay  such  advances,  is 
declared  to  be  in  the  nature  of  fraud;  the  entering  into  such 
contract  with  intention  to  break  it  is  declared  to  be  a  mis- 
demeanor, etc.,  etc.  The  negro  refusing  to  carry  out  his 

1  Jaremillo  v.  Parsons,  1  N.  M.  190;  in  re  Lewis,  114  Fed.  963;  Peonage 
cases,  123  Fed.  671;  United  States  v.  McClellan,  127  Fed.  971;  United  States 
v.  Eberhard,  127  Fed.  971;  Peonage  cases,  136  Fed.  707;  charge  to  jury,  138 
Fed.  686;  Robertson  v.  Baldwin,  165  U.  S.  275;  Clyatt  v.  United  States,  197 
U.  S.  207;  Vance  v.  State,  57  S.  E.  889;  Bailey  v.  Alabama.  211  U.  S.  452; 
Torrey  v.  Alabama,  37  So.  332. 


242  POPULAR  LAW-MAKING 

labor  contract  is  then  cited  before  the  nearest  magistrate, 
who  imposes  under  the  statute  a  nominal  fine.  The  negro, 
being  of  course  unable  to  pay  this  fine,  is  remanded  to  the 
custody  of  his  bondsmen,  who  pay  it  for  him,  one  of  them 
of  course  being  the  master.  The  negro  leaves  the  court  in 
custody  of  his  employer  and  carries  away  the  impression  with 
him  that  he  has  escaped  jail  only  by  being  committed  by  the 
court  to  his  employer  to  do  his  employer's  work,  an  impression 
possibly  not  too  remote  from  the  fact.  It  is  easy  to  see  how  to 
the  African  mind  the  magistrate  may  appear  like  an  Oriental 
cadi,  and  how  he  may  be  led  to  carry  out  his  work  as  sub- 
missively as  would  the  Oriental  under  similar  circumstances. 

There  can  be  no  question,  except  in  the  minds  of  those 
utterly  unfamiliar  with  the  tropics  and  Southern  conditions 
generally,  of  the  difficulty  of  this  labor  problem  throughout 
the  world.  It  has  appeared  not  only  in  our  Southern  States 
but  in  the  West  Indies  and  South  Africa — in  any  country 
where  colored  labor  is  employed.  The  writer  knows  of  at 
least  one  large  plantation  in  the  South  where  many  hundred 
negroes  were  employed  to  get  in  the  cotton  crops,  and  the 
employer  was  careful  never  to  deliver  their  letters  until  the 
season  had  terminated ;  for  on  the  merest  invitation  to  attend 
a  ball  or  a  wedding  in  some  neighboring  county,  the  bulk  of 
the  help  would  leave  for  that  purpose  and  might  or  might 
not  return.  Railway  labor  is  not  so  difficult,  because  the 
workmen  commonly  work  in  gangs  under  an  overseer  who 
usually  assumes,  if  he  is  not  vested  with,  some  physical 
authority;  but  the  case  of  the  individual  farmer  who  is 
trusted  upon  his  own  exertions  to  till  a  field  or  get  in  the  crop 
seems  to  be  almost  impossible  of  regulation  under  a  strict 
English  common-law  system.  Farming  on  shares  appears  to 
be  almost  equally  unsatisfactory.  The  farmer  gets  his  sub- 
sistence, but  the  share  of  the  proprietor  in  the  crop  produced 
is  almost  inappreciable. 

In  closing  this  chapter  reference  should  be  made  to  a 
large  amount  of  American  legislation,  most  of  which  was 


INTIMIDATION  243 

absolutely  unnecessary  as  merely  embodying  the  common 
law.  Still  it  has  its  use  in  extending  the  definition  of  the 
"unlawful  act."  It  will  be  remembered  that  one  of  the 
three  branches  of  conspiracy  was  the  combination  to  effect 
a  lawful  end  by  unlawful  acts.  Now  many  of  the  States 
have  statutes  declaring  even  threats,  or  intimidation  without 
physical  violence,  to  be  such  unlawful  act.  It  may  possibly 
be  doubted  whether  it  might  not  have  been  so  held  at  the 
common  law;  but  such  legislation  has  always  the  advantage 
of  getting  a  uniform  line  of  decisions  from  all  the  judges. 
The  New  York  statute  passed  many  years  ago  may  serve  as 
a  sample :  It  provides  in  substance  that  any  threat  or  intim- 
idation or  abusive  epithets  or  the  hiding  of  tools  or  clothes, 
when  done  even  by  one  individual,  is  an  unlawful  act;  there- 
fore when  strikers,  although  engaged  in  a  lawful  strike,  as  to 
raise  their  own  wages,  or  any  one  of  them,  intend  or  do  any 
such  act,  they  become  guilty  of  unlawful  conspiracy. 

This  is  probably  the  only  legislation  on  such  matters  which 
adds  anything  to  the  common  law.  Many  of  the  States, 
usually  Western  States — apt  to  be  more  forgetful  of  the  com- 
mon law  than  the  older  Commonwealths — have  been  at 
pains  to  pass  statutes  against  blacklists.  Such  statutes  are 
entirely  unnecessary,  but  as  they  relate  to  combinations  they 
will  be  considered  in  the  next  chapter. 

From  the  official  report  of  the  U.  S.  government,  prepared 
by  the  Commission  of  Labor  in  1907,  it  appears  that  twenty 
States  and  Territories,  including  Porto  Rico,  have  provisions 
against  intimidation,  of  which  the  best  example  is  the  New 
York  statute  quoted  above.  Alabama  and  Colorado  have 
express  statutes  against  picketing,  other  than  the  general 
statutes  against  interference  with  employment.  Nineteen 
other  States,  of  which,  however,  only  a  few— Massachusetts, 
Michigan,  Oregon,  Texas,  and  Utah — are  the  same,  have 
provisions  against  the  coercion  of  employees  in  trading  or 
industry,  usually  to  prevent  them  from  joining  unions,  but 
such  statutes  are  also  levelled  against  the  compelling  them  to 


244  POPULAR  LAW-MAKING 

buy  or  trade  in  any  shop,  or  to  rent  or  board  at  any  house. 
Five  States  have  statutes  prohibiting  the  hiring  of  armed 
guards  other  than  the  regular  police,  and  especially  the  im- 
porting such  from  other  States,  Massachusetts  and  Illinois 
among  the  number,  though  none  of  the  five  are  so  radical 
as  the  later  statute  of  Oklahoma  quoted  below.  Statutes 
for  the  enforcement  of  the  labor  contract  exist  usually  only 
in  the  South,  but  we  find  a  beginning  of  similar  legislation  in 
the  North,  both  Michigan  and  Minnesota  having  statutes 
making  it  a  misdemeanor  to  enter  into  a  labor  contract  with- 
out intent  to  perform  it  in  cases  where  advances  are  made  by 
way  of  transportation,  supplies,  or  other  benefits.  The  new 
anti-tip  statute  or  law  forbidding  commissions  to  any  servant 
or  employee  is  to  be  found  in  Michigan,  Wisconsin,  and  other 
States  (see  page  155  above).  A  few  States  require  any  em- 
ployer to  give  a  discharged  employee  a  written  statement  of 
the  reason  for  his  discharge,  but  such  statutes  are  probably  un- 
constitutional. Colorado  has  the  extraordinary  statute  for- 
bidding employees  to  be  discharged  by  reason  of  age.  The 
common  law  of  loss  of  service  is  strengthened  generally  in  the 
Southern  States  by  statutes  against  the  enticing  of  employees. 
Public  employment  offices,  as  well  as  State  labor  bureaus, 
are  now  maintained  in  nearly  all  the  States. 

Examinations  and  licenses  are  now  required  in  the  several 
States  of  electricians,  engineers,  horse-shoers,  mining  fore- 
men, elevator  operators,  plumbers,  railroad  employees,  sta- 
tionary firemen  and  engineers,  and  street  railway  employees, 
in  addition  to  the  trades  enumerated  on  page  147. 

All  the  Northeastern  States  except  Maine  and  Vermont, 
and  Maryland,  Delaware,  West  Virginia  Alabama,  Missouri, 
Tennessee,  Wisconsin,  Michigan,  Illinois,  Indiana,  South 
Dakota,  and  Washington  have  general  factory  acts,  and  all  the 
mining  States  have  elaborate  statutes  for  the  safety  of  mines. 

New  York  and  Wisconsin  have  statutes  forbidding  or 
making  illegal  labor  unions  which  exclude  their  members 
from  serving  in  the  militia. 


LABOR  LEGISLATION  OF  THE  LAST  FEW  YEARS  245 

Connecticut  and  Massachusetts  have  laws  to  facilitate 
profit-sharing  by  corporations.  Such  statutes  would  seem 
hardly  necessary,  as  profits  may  be  shared  or  stock  distrib- 
uted or  sold  without  a  law  to  that  effect ;  if  it  be  regarded  as 
part  of  the  reward  of  wages,  no  injunction  would  be  granted 
to  protesting  stockholders.  Fifteen  States  and  Territories, 
including  Porto  Rico,  have  laws  for  the  protection  of  em- 
ployees as  members  of  labor  unions,  and  five  as  members  of 
the  national  guard  or  militia,  similar  to  the  New  York  statute 
just  mentioned.  Nearly  all  the  States  have  laws  for  the 
protection  of  employees  as  voters,  as  by  requiring  half  holi- 
days or  reasonable  time  to  vote,  or  that  their  pay  should  not 
be  given  them  in  envelopes  upon  which  is  printed  any  re- 
quest to  vote  or  other  political  material. 

Nearly  all  the  States  require  seats  for  female  employees, 
and  New  Jersey  requires  seats  for  horse-car  drivers.  Five 
States  have  general  provisions  regulating  the  employment  of 
women ;  ten  forbid  their  employment  in  bar-rooms  (see  page 
226  above) ;  three  regulate  their  hours  of  labor  to  an  inequal- 
ity with  men;  and  most  of  the  States  forbid  females  to  be 
employed  in  mines  or  underground  generally,  or,  as  we  have 
noted  above,  in  night  labor.  California,  Illinois,  and  Wash- 
ington provide  that  sex  shall  be  no  disqualification  for  employ- 
ment. Four  States,  among  them  Illinois,  require  employers 
seeking  labor  by  advertisement  to  mention  (if  such  be  the 
case)  that  there  is  a  strike  in  their  establishment;  twelve 
States  (see  above,  page  231)  have  so  far  tackled  the  sweat- 
shop problem,  while  practically  every  State  in  the  Union 
makes  wages  a  preferred  claim  in  cases  of  death  or  insol- 
vency of  the  employer. 

There  is,  however,  one  matter  we  have  reserved  for  the 
last,  because  it  is  one  of  the  two  or  three  points  about  which 
the  immediate  contest  before  us  is  to  rage.  That  is  the  case 
of  individual  discharge.  It  is  elementary  that  just  as  an 
employee  may  leave  with  cause  or  without  cause,  so  an 
employer  may  discharge  without  cause  or  with  cause,  nor 


246  POPULAR  LAW-MAKING 

is  he  bound  to  state  his  reasons,  and  certain  statutes  requir- 
ing him  to  do  so  with  the  object  of  avoiding  a  blacklist  have 
been  declared  unconstitutional  in  Southern  States.  But 
organized  labor  is  naturally  very  desirous  of  resenting  the 
discharge  of  anybody  for  no  other  reason  than  that  of  being 
a  union  man.  In  fact  it  is  not  too  much  to  say  that  this, 
with  the  legalization  of  the  boycott,  are  the  two  great  de- 
mands the  unions  are  now  making  upon  society.  There- 
fore, statutes  have  been  passed  in  many  States  making  it 
unlawful  for  the  employer  to  make  it  a  condition  of  employ- 
ment that  the  employee  should  not  be  a  member  of  a  union ; 
or  to  discharge  a  person  for  the  reason  that  he  is  a  member 
of  a  union.  And  closely  connected  with  this  is  the  combina- 
tion of  union  employees  to  force  an  employer  to  discharge 
a  man  because  he  is  not  a  member  of  a  union.  This  last 
will  come  logically  under  the  next  chapter  covering  combi- 
nations and  is  not  yet  the  subject  of  any  statute.  Now  the 
difficulty  of  these  statutes,  about  the  discharge  of  union 
labor,  is  that  it  is  almost  impossible  to  go  into  the  motive; 
a  man  is  discharged  "for  the  good  of  the  service."  It  is 
easy,  of  course,  to  provide  that  there  should  be  no  written 
or  definite  contract  on  the  matter;  but  it  is  not  easy  to  pun- 
ish or  prohibit  the  discharge  itself  without  such  contract. 
Such  legislation  has,  however,  been  universally  held  uncon- 
stitutional, so  that  at  present  this  must  be  the  final  word  on 
the  subject.  The  right  of  the  employer  to  employ  whom 
he  likes  and  to  discharge  whom  he  likes  and  make  a  prefer- 
ence, if  he  choose,  either  for  union  or  non-union  labor,  is  one 
which  cannot  be  taken  away  from  him  by  legislation,  accord- 
ing to  decisions  of  the  Supreme  Courts  of  Missouri,  Xew 
York,  and  the  United  States.  Therefore,  as  the  matter  at 
present  stands,  the  constitutions,  State  and  Federal,  must 
be  amended  if  that  cardinal  right  of  trade  and  labor  is  to  be 
interfered  with. 

In  closing  it  may  be  wise  to  run  over  the  actual  labor  laws 
passed  in  the  States  during  the  last  twenty  years,  mentioning 


BLACKLISTING   AXD  DISTRIMIXATIOX  247 

the  more  important  lines  of  legislation  so  as  to  show  die 
general  tendency. 

Beginning  in  1890  we  find  most  of  the 
the  counterfeiting  of  union  labels,  arbitration  laws, 
of  labor  in  State  employments,  weekly  payment  laws,  the 
preference  of  debts  for  labor  in  cases  of  insolvency,  the  pro- 
hibition of  railroad  relief  funds,  the  hours  of 
children  in  factories,  seats  for  women  in  shops,  die 
of  prison  labor,  dangerous  machinery  in  factories,  protection 
in  mines,  and  the  incorporation  of  trades-unions.  Me- 
chanics' lien  laws  are  passed  in  large  quantities  every  year 
and  are  the  subject  of  endless  amendment  We  wiD,  there- 
fore, leave  this  out  for  the  rest  of  oar  discussion  as  after  afl 
affecting  only  the  owners  of  real  estate. 

In  1891  we  find  more  laws  regulating  or  limiting  die  hours 
of  labor  of  women  and  children,  prohibiting  it  entirely  in 
mines;  several  anti-truck  kws;  two  laws  against  die 
ing  of  coal  before  the  miner  is  paid,  and  in 
laws  against  imposing  fines  for  imperfect  weaving  and  de- 
ducting the  fine  from  the  wages  paid.  Pennsylvania  thinks 
it  necessary  to  enact  by  statute  that  a  strike  is  lawful  when 
the  wages  are  insufficient  or  it  is  contrary  to  union  rules  to 
work,  which  latter  part  is  dearly  unconstitutional  There 
is  one  statute  against  boycotting  and  three  against  black- 
listing. 

In  1892  there  are  more  laws  limiting  the  hours  of  labor  of 
women  and  children  to  fifty-eight,  or  in  New  Jersey,  fifty- 
five,  hours  a  week;  laws  against  weavers'  fines,  and  restrict- 
ing the  continuous  hours  of  railway  men.  The 
acts  first  appear  hi  this  year,  and  the  tUaliilrs 
the  discharge  of  men  for  belonging  to  a  union  or  ™nlrhiig  a 
condition  of  their  employment  that  they  do  not  belong  to  one. 

In  1893  the  laws  establishing  State  bureaus  of  labor  be- 
come numerous.  Four  more  States  adopt  sweat-shop  kws, 
and  there  is  further  regulation  of  child  labor.  Six  States 
adopt  statutes  against  blacklisting. 


248  POPULAR  LAW-MAKING 

In  1894,  being  the  year  after  the  panic,  labor  legislation 
is  largely  arrested.  New  York  adopts  the  statute,  after- 
ward held  constitutional,  requiring  that  only  citizens  of  the 
United  States  should  be  employed  on  public  works,  and 
statutes  begin  to  appear  to  provide  for  the  unemployed. 
There  is  legislation  also  against  intimidation  by  unions, 
against  blacklisting,  and  against  convict-made  goods. 

In  1895  there  is  still  less  legislation;  only  a  statute  for 
State  arbitration,  against  payment  of  wages  in  store  orders, 
against  discrimination  against  unions,  and  for  factory  legis- 
lation may  be  noted. 

In  1896  there  are  a  few  statutes  for  State  arbitration  and 
weekly  payment,  for  regulating  the  doctrine  of  fellow  ser- 
vants, and  some  legislation  concerning  factories  and  sweat- 
shops. 

In  1897  California  presides  a  minimum  wage  of  two 
dollars  on  public  contracts,  and  Kansas  adopts  the  first 
statute  against  what  are  termed  indirect  contempts;  that  is, 
requiring  trial  by  jury  for  contempts  not  committed  in  the 
presence  of  the  court.  There  is  a  little  legislation  against 
blacklisting,  and  Southern  States  forbid  the  farming  out  of 
convict  labor. 

In  1898  Virginia  copies  the  Kansas  statute  against  indi- 
rect contempts,  and  one  or  two  States  require  convict-made 
goods  manufactured  outside  the  State  to  be  so  labelled, 
which  statutes  have  since  been  held  unconstitutional  as  an 
interference  with  interstate  commerce. 

In  1899  the  question  of  discrimination  against  union  labor 
becomes  still  more  prominent  and  it  is  in  some  States  made 
a  misdemeanor  to  make  the  belonging  or  not  belonging  to 
a  union  a  condition  of  employment.  All  these  statutes  have 
since  been  held  unconstitutional. 

In  1900,  a  year  of  great  prosperity,  there  is  almost  no 
labor  legislation. 

In  1901  we  only  find  laws  establishing  free  employment 
bureaus,  except  that  California  provides  a  maximum  time 


LABOR  LEGISLATION  249 

for  women  and  children  of  nine  hours  a  day  in  both  manu- 
facturing and  mercantile  occupations,  and  a  minimum  wage 
upon  all  public  work  of  twenty  cents  an  hour. 

In  1902  Colorado  overrules  her  Supreme  Court  by  getting 
by  constitutional  amendment  an  eight-hour  day  in  mines. 
Massachusetts  passes  a  joint  resolution  of  the  Legislature 
asking  for  a  Federal  constitutional  amendment  which  shall 
permit  Congress  to  fix  uniform  hours  of  labor  throughout 
the  United  States,  and  Kentucky  and  other  Southern  States 
begin  to  legislate  to  control  the  hours  of  labor  of  women 
and  children. 

In  1903  this  movement  continues  and  in  the  Northwestern 
States,  Oregon  and  Colorado,  the  length  of  hours  of  labor 
of  women  of  all  ages  is  generally  limited.  Weekly  payments 
and  anti-truck  laws  are  adopted.  Montana  forbids  company 
boarding-houses  and  Colorado  makes  the  striking  attempt  to 
do  away  with  the  so-called  dead  line;  that  is  to  say,  a  statute 
forbidding  any  person  to  be  discharged  by  reason  of  age, 
between  the  years  of  eighteen  and  sixty.  California  follows 
Maryland  in  abolishing  the  conspiracy  law,  both  as  applied 
to  employers  and  employees.1  It  does  not  seem  that  in 
either  State  this  statute  has  yet  been  tested  as  class  legisla- 
tion. Legislation  against  the  open  shop  continues  in  far 
Western  States,  while  Minnesota  makes  it  a  misdemeanor 
for  an  employer  to  exact  as  a  condition  of  employment  that 
the  employee  shall  not  take  part  in  a  strike. 

In  1904  there  is  little  legislation.  Far  Western  States  go 
on  with  the  protection  of  child  labor,  particularly  in  mines, 
and  Alabama  adopts  a  general  statute  against  picketing, 
boycotting,  and  blacklisting. 

In  1905  we  first  find  legislation  against  peonage  or  com- 
pulsory labor  in  the  Southern  States,  North  Carolina  and 
Alabama.  The  celebrated  constitutional  amendment  of  New 
York  is  enacted,  which  gives  the  Legislature  full  power  to 
regulate  wages,  hours,  and  conditions  in  public  labor.  (See 

1  See  the  next  chapter. 


250  POPULAR  LAW-MAKING 

above,  p.  161.)  Further  regulation  of  factories  and  mines 
goes  on,  with  State  employment  agencies  and  reform  of  the 
employers'  liability  laws.  Colorado  and  Utah  prohibit  boy- 
cotts and  blacklisting,  and  in  one  or  two  States  corporations 
are  required  to  give  every  person  discharged  a  letter  stating 
the  reason  of  his  discharge,  which  statute  was  since  held 
unconstitutional  in  Georgia. 

In  1906  the  usual  sanitary  legislation  goes  on.  Massa- 
chusetts adopts  an  eight-hour  law  for  public  work.  Arkan- 
sas and  Louisiana  attempt  legislation  preventing  the  viola- 
tion of  contract  by  persons  farming  on  shares,  or  the  hiring 
of  farm  laborers  by  others,  and  Massachusetts  establishes 
free  employment  bureaus. 

In  1907  four  more  Southern  States  attempt  laws  to  con- 
trol agricultural  labor;  the  factory  acts  and  child-labor  laws 
continue  to  spread  through  the  South;  New  York  largely 
develops  its  line  of  sweat-shop  legislation,  and  more  child- 
labor  laws  and  laws  prohibiting  the  work  of  women  in  mines 
are  introduced  in  the  South. 

In  1908  Oklahoma  adopts  the  Kansas  contempt  statute, 
and  Virginia  provides  for  appeals  to  the  Supreme  Court  in 
contempt  cases.  South  Carolina  makes  it  a  misdemeanor 
to  fail  to  work  after  being  employed  on  a  contract  for  per- 
sonal services,  or  for  the  employer  on  his  side  to  fail  to  carry 
it  out.  Oklahoma  adopts  a  curious  strike  statute  which, 
besides  the  usual  provision  for  the  closed  shop,  makes  it  a 
felony  to  bring  workmen,  i.  e.,  strike-breakers,  from  other 
places  in  the  State  or  from  other  States  under  false  pretences, 
including,  in  the  latter,  concealment  of  the  existence  of  the 
strike;  and  makes  it  a  felony  to  hire  armed  men  to  guard 
such  persons. 

With  this  climax  of  labor  legislation  our  review  may  prop- 
erly end,  but  the  reader  will  not  fail  to  note  the  advantage 
that  may  be  derived  from  experience  of  these  extraordinary 
statutes  as  they  are  tried  out  in  the  different  States  and  Ter- 
ritories. It  could  be  wished  that  some  machinery  could  be 


INJUNCTIONS  IN  LABOR  DISPUTES  251 

provided  for  obtaining  information  as  to  their  practical 
working.  The  legislation  of  1909  was  principally  concerned 
with  the  matter  of  employers'  liability  for  accidents,  a 
conference  upon  this  subject  having  been  held  by  three 
State  commissions,  New  York,  Minnesota,  and  Wisconsin. 
Massachusetts  extended  the  act  of  1908  permitting  employ- 
ers and  employees  to  contract  for  the  compensation  of 
accidents;  and  Montana  established  a  State  accident  insur- 
ance for  coal-miners.  California  and  Montana  exempted 
labor  in  a  large  degree  from  the  operation  of  the  State  anti- 
trust laws;  but  Washington  adopted  a  new  statute  defining 
a  conspiracy  to  exist  when  two  or  more  persons  interfere  or 
threaten  to  interfere  with  the  trade,  tools,  or  property  of 
another,  and  proof  of  an  overt  act  is  not  necessary.  North 
and  South  Carolina,  Texas,  and  Connecticut  passed  the 
usual  statute  protecting  employees  from  being  discharged 
because  of  membership  in  a  trades-union,  which,  as  we 
have  said,  has  been  held  unconstitutional  wherever  contested. 
Arizona,  California,  Idaho,  Washington,  Wyoming  and 
Nevada  enacted  or  amended  eight-hour  measures  for  em- 
ployees in  mines,  but  little  was  accomplished  for  children 
in  the  Southern  States.1 

The  labor-injunction  question  has  been  recently  covered 
by  an  admirable  study  prepared  by  the  Massachusetts  Bu- 
reau of  Statistics  and  published  in  December,  1909.  The 
investigation  covers  eleven  years,  from  1898  to  1908,  in 
which  there  occurred  two  thousand  and  two  strikes.  In 
sixty-six  of  these  strikes  the  employers  sought  injunctions 
and  in  forty-six  cases  injunctions  were  actually  issued.  In 
only  nine  cases  were  there  proceedings  for  contempt  of  these 
injunctions,  while  only  in  two  cases  out  of  the  two  thousand 
were  there  any  convictions  for  contempt  of  court.  In  eigh- 
teen cases  injunctions  were  sought  to  prevent  employees 
from  striking,  but  only  in  four  of  these  were  they  granted, 

1  See  "  Progressive  Tendencies  in  the  Labor  Legislation  of  1909,"  by  Irene 
Osgood,  in  the  American  Political  Science  Review  for  May,  1910. 


252  POPULAR  LAW-MAKING 

and  one  of  these  was  later  dissolved.  Seven  bills  were 
brought  by  employees  against  unions  for  interference  with 
their  employment,  etc.,  and  in  three  cases  unions  sought 
injunctions  against  other  unions.  In  one  case  a  union 
brought  a  bill  against  an  employer  and  in  one  case  an  em- 
ployer sought  an  injunction  against  an  employers'  associa- 
tion. Under  a  decision  of  the  Massachusetts  Supreme  Court 
it  was  declared  unlawful  for  a  trade-union  to  impose 
fines  upon  those  of  its  members  who  refused  to  obey  its 
orders  to  strike  or  engage  in  a  boycott.  In  1909  a  bill  was 
introduced  in  the  Legislature  with  the  special  object  of  per- 
mitting this,  but  it  failed  of  passage.  The  Bulletin  contains 
a  brief  history  of  equity  jurisdiction  in  labor  cases  and  re- 
prints all  the  decisions  of  the  Supreme  Court  of  Massachu- 
setts down  to  the  year  1909,  and  the  actual  injunctions 
issued  by  Superior  Courts  in  five  late  cases,  with  a  chrono- 
logical summary  of  proceedings  in  cases  concerning  indus- 
trial disputes  in  all  Massachusetts  courts  for  the  eleven  years 
covered  by  the  report. 

The  matter  of  labor  legislation  is  of  such  world-wide 
importance  that  a  word  or  two  may  not  be  out  of  place  con- 
cerning recent  legislation  in  other  countries.  Other  than 
factory  and  sweat-shop  acts  and  hours  of  labor  laws,  there 
are  three  great  lines  of  modern  legislation  in  Europe, 
North  America,  and  Australasia:  employers'  liability,  old-age 
pensions,  minimum  wage.  On  the  first  point,  the  tendency  of 
modern  legislation,  as  has  been  intimated,  is  to  make  the 
employer  liable  in  all  cases  for  personal  injuries  suffered  in 
his  employ  without  regard  to  contributory  negligence  or  the 
cause  of  the  accident.  That  is,  it  is  in  the  nature  of  an  insur- 
ance which  the  employer  is  made  to  carry  as  part  of  his 
business  expenses.  It  has  the  great  advantage  of  doing  away 
with  litigation  and  confining  his  liability  to  reasonable 
amounts,  and  in  the  writer's  opinion  is  in  the  long  run  for 
the  benefit  of  the  employer  himself.  There  is  one  exception. 


OLD-AGE  PENSIONS  AND  STATE   INSURANCE    253 

The  employer  is  not  liable  when  the  injury  was  caused  by 
the  wilful  misconduct  of  the  workman  injured. 

Old-age  pensions,  or  State  insurance  against  old  age  as 
well  as  disability,  now  exist  in  several  countries,  notably 
Germany,  New  Zealand,  and  England.  The  German  law1 
is  much  the  most  intelligent  and  the  least  communistic  in 
that  it  provides  that  half  the  fund  is  raised  by  deductions 
made  from  the  wages  of  the  workmen  themselves.  It 
applies  to  all  persons,  male  and  female,  employed  under 
salary  or  wages  as  workmen,  journeymen,  apprentices,  or 
servants;  also  to  all  industrial  workmen,  skilled  laborers, 
clerks,  porters,  and  assistants ;  also  to  all  other  persons  whose 
occupation  consists  principally  in  the  service  of  others,  such 
as  teachers  who  do  not  receive  an  annual  salary  of  more 
than  five  hundred  dollars;  also  to  sailors  and  railway  em- 
ployees; also  to  domestic  servants.  No  one  is  obliged  to 
insure  himself  who  is  over  the  age  of  seventy,  and  no  one  is 
bound  to  insure  who  does  not  work  in  a  required  insurance 
class  for  more  than  twelve  weeks  or  fifty  days  in  each  year. 
When  women  get  married,  they  insist  on  reimbursement  of 
one  half  of  all  the  insurance  assessments  they  have  paid  up 
to  that  time,  provided  such  assessments  amount  to  two 
hundred  weeks,  or  four  years — a  provision  which  must  very 
much  help  out  marriages,  and  from  which  the  amusing  deduc- 
tion may  be  drawn  that  the  average  value  of  a  husband  in 
Germany  is  considered  to  be  about  one-half  the  expense  of 
supporting  his  wife  for  a  period  of  two  hundred  weeks,  or 
four  years.  On  the  other  hand,  the  law  has  the  effect  of 
postponing  marriage  for  the  first  four  years  of  a  woman's 
employment,  as  it  practically  imposes  a  penalty  upon  a 
woman  marrying  before  four  years  from  the  time  when  she 
begins  to  pay  to  the  State  insurance  money. 

The  English  old-age  pension  law  is  a  mere  gratuity  in  the 
nature  of  outdoor  relief,  giving  to  everybody  who  has  reached 
a  certain  age,  without  reference  to  any  previous  service, 
>  U.  S.  Industrial  Commission  Reports,  vol.  V,  pp.  228-241. 


254  POPULAR  LAW-MAKING 

tramps  or  drones  as  well  as  workmen.  It  is  a  law  inde- 
fensible in  principle  and  merely  the  accident  of  a  radical 
government.  It  provides  that  every  person  over  seventy 
whose  yearly  means  do  not  exceed  thirty-one  pounds  ten 
shillings  (i.  e.  income  from  property  or  privilege)  and  is  not 
in  " regular  receipt  of  poor  relief"  and  has  not  " habitually 
failed  to  work  according  to  his  ability,  opportunity  and  need  " 
nor  been  sentenced  to  any  imprisonment  for  a  criminal 
offence — all  to  be  determined  by  a  local  pension  committee 
with  appeal  to  the  central  pension  authority — shall  receive 
a  pension  of  five  shillings  a  week  when  his  annual  means 
do  not  exceed  twenty-one  pounds,  that  is,  thirteen  pounds  a 
year,  down  to  one  shilling  a  week  when  they  exceed  twenty- 
eight  pounds  seventeen  shillings  six  pence. 

The  New  Zealand  law  is  more  intelligent.  It  extends 
old-age  pensions  to  every  person  over  the  age  of  sixty-five 
who  has  resided  thirty-five  years  in  the  colony  and  not  been 
imprisoned  for  a  criminal  offence,  nor  has  abandoned  his 
wife,  nor  neglected  to  provide  for  his  or  her  children.  It 
does  not,  however,  appear  that  any  previous  employment  is 
necessary.  The  pension  amounts  to  eighteen  pounds,  say 
ninety  dollars,  a  year  and  is  not  given  to  any  one  who  has  an 
income  of  fifty-two  pounds  a  year.  The  machinery  of  the 
law  is  largely  conducted  through  the  post-office  and  the  entire 
expense  is  met  by  the  state.  That  is  to  say,  there  is  no  con- 
tribution from  the  laborers  themselves. 

Austria,  Italy,  Norway,  and  Denmark  in  1901  had  also 
state  insurance  systems. 

The  minimum-wage  idea  has  so  far  been  attempted  only 
in  New  Zealand  and  in  Great  Britain.1  (See  above,  p.  160.) 

1  This,  the  Trade  Boards  Act,  the  22d  chapter  of  the  ninth  of  Edward 
VII.,  enacted  October  20,  1909,  took  effect  January  1,  1910.  The  act  ap- 
plies without  specification  to  ready-made  and  wholesale  tailoring,  the  mak- 
ing of  boxes,  machine-made  lace  and  chain-making,  and  may  be  applied  to 
other  trades  by  provisional  order  of  the  Board  of  Trade,  when  confirmed  by 
Parliament.  The  Board  of  Trade  may  make  such  provisional  order  apply- 
ing the  act  to  any  specified  trade  if  they  are  satisfied  that  the  rate  of  wages 
prevailing  in  that  trade  is  exceptionally  low  as  compared  with  that  in  other 
employments,  and  that  the  other  circumstances  of  the  trade  are  such  as  to 


THE  ENGLISH  MINIMUM-WAGE  LAW  255 

The  New  Zealand  law  of  1899  provided  a  minimum  wage 
of  four  shillings  per  week  for  boys  and  girls,  and  five  shil- 
lings for  boys  under  eighteen,  but  the  principle  has  been 
much  extended  by  a  more  recent  statute.  The  English 
law  is  not  yet  in  active  operation,  and  may  or  may  not 
receive  great  extension.  It  provides  in  substance  for  the 
fixing  of  a  minimum  wage  in  the  clothing  trade  or  any 
other  trade  specified  by  the  Home  Secretary.  The  obvi- 
ous probability  is  that  it  will,  as  in  New  Zealand,  soon 
be  extended  to  all  trades.  This  wage  is  to  be  fixed  by  a 
board  of  arbitrators  with  the  usual  representation  given  to 
each  side,  and  it  will  doubtless  work,  as  it  does  in  New 
Zealand,  for  the  elevation  of  wages,  as  such  commissions 
rarely  reduce  them. 

Co-operation  and  profit-sharing,  the  great  hope  of  the 
middle  years  of  the  nineteenth  century,  has  made  little  prog- 
ress in  England  or  the  United  States  since.  Such  successful 
experiments  as  now  exist  consist  principally  in  offering  to 
the  employees  the  opportunity  to  buy  the  stock  of  the  com- 
pany at  a  reasonable  rate,  as  in  the  case  of  the  Illinois  Cen- 
tral Railroad  and  the  United  States  Steel  Company.  Many 
mills,  however,  give  a  certain  increase  in  wages  at  the  end  of 
regular  periods  proportionate  to  the  profits.  This  techni- 
cally is  what  we  call  profit-sharing.  The  word  "co-opera- 
tion" should  be  reserved  for  institutions  actually  co-operative; 
that  is  to  say,  where  the  employees  are  partners  in  business 

render  the  application  of  the  act  expedient;  and  in  like  manner  they  may 
make  a  provisional  order  providing  that  the  act  shall  cease  to  apply  to  any 
trade  to  which  it  already  was  applied.  Section  2  provides  that  the  Board 
of  Trade  shall  establish  one  or  more  trade  boards  for  any  trade  to  which  the 
act  is  to  be  applied,  with  separate  trade  boards  for  Ireland.  These  trade 
boards  (section  11)  consist  of  members  representing  employers  and  mem- 
bers representing  workers  in  equal  proportions,  and  of  certain  appointed 
members.  Women  are  eligible,  and  the  representative  members  may  be 
elected  or  nominated  as  the  regulations  determine.  The  chairman  and 
secretary  are  appointed  by  the  Board  of  Trade.  Such  boards  are  given 
power  to  fix  minimum  rates  of  wages  both  for  time  and  piece  work,  which 
thereafter  must  be  observed  under  penalty.  There  is  further  a  machinery 
for  the  establishment  of  district  trade  committees.  AH  regulations  made  by 
such  Boards  of  Trade  shall  be  laid  as  soon  as  possible  before  both  houses  of 
Parliament;  but  there  does  not  appear  to  be  any  other  appeal. 


256  POPULAR  LAW-MAKING 

with  the  employers.  Of  such  there  are  very  few  in  the 
United  States,  although  there  are  quite  a  number  in  England. 
In  1901  there  were  only  nineteen  co-operative  establishments 
in  the  United  States,  most  prominent  among  which  are  the 
Peacedale  Woolen  Mills  in  Rhode  Island;  the  Riverside 
Press  in  Cambridge;  Rand,  McNally  &  Co.,  Chicago;  the 
Century  Company,  of  New  York;  the  Proctor  &  Gamble 
Soap  Co.,  of  Cincinnati;  the  Bourne  Mills,  of  Fall  River,  and 
the  Pillsbury  Flour  Mills,  of  Minneapolis.  Yet  these  insti- 
tutions are  really  profit-sharing  rather  than  co-operative,  for 
the  return  is  merely  an  extra  cash  dividend  to  employees 
who  have  no  voice  in  the  management.  Mr.  Oilman  in  his 
book,  "A  Dividend  to  Labor,"  tells  us  that  there  are  thirty- 
nine  other  cases  at  least  where  profit-sharing  once  adopted 
has  been  abandoned.  On  the  other  hand,  in  Great  Britain 
there  were  in  1899  one  hundred  and  ten  important  co-opera- 
tive productive  establishments.  There  are  many  more  on 
the  Continent. 

Arbitration  laws  are  also  far  more  developed  and  success- 
ful in  European  and  Australasian  countries  than  in  Great 
Britain  or  the  United  States,  although  the  first  English  act 
concerning  arbitration  was  passed  as  early  as  1603.  In  the 
first  year  of  Queen  Anne,  1701,  was  the  first  act  referring 
specially  to  arbitration  of  labor,  and  the  next,  Lord  St. 
Leonard's  act,  in  1867,  which  attempted  to  establish  councils 
of  conciliation,  something  after  the  pattern  of  the  French 
conseils  de  prudhommes;  but  in  1896  these  acts  were  repealed 
and  the  Conciliation  Act  of  the  59th  Victoria,  chapter  30, 
substituted.  It  provides  that  the  boards  of  arbitration  may 
act  of  their  own  motion  in  so  far  as  to  make  inquiry  and  take 
such  steps  as  they  deem  expedient  to  bring  the  parties  to- 
gether, and  upon  application  of  either  side  may  appoint  a 
conciliator,  and  on  the  application  of  both  sides,  appoint  an 
arbitrator.  Their  award  is  filed  of  record  and  made  public, 
but  no  provision  is  made  for  its  compulsory  enforcement. 
In  France,  the  legislation  is  much  more  intelligent.  There 


FOREIGN  ARBITRATION  LAWS  257 

the  distinction  between  individual  and  collective  labor  is 
clearly  made  and  within  recent  years  there  is  elaborate  legis- 
lation for  the  settlement  of  strikes,  disputes  of  the  collective 
class,  which  we  will  later  describe.  For  the  adjustment  of 
individual  disputes,  France  has  long  had  in  her  conseils  de 
prudhommes  a  special  system  of  labor  courts  that  constitutes 
one  of  her  most  distinctive  social  institutions.1  These  are 
special  tribunals  composed  of  employers  and  workingmen, 
created  for  the  purpose  of  adjusting  disputes  by  conciliation 
if  possible,  or  judicially  if  conciliation  fails.  Appeal  from 
their  decisions  is  made  to  the  tribunals  of  commerce.  The 
first  such  council  was  created  in  Lyons  in  1806,  but  since  they 
have  spread  through  all  France.  When  the  amount  involved 
does  not  exceed  two  hundred  francs,  the  judgment  of  the 
council  is  final;  above  that  sum  an  appeal  may  be  made  to 
the  tribunal  of  commerce.  The  most  important  element  of 
all,  perhaps,  is  that  these  councils  have  to  some  extent  crimi- 
nal powers,  or  powers  of  punishment.  They  can  examine 
the  acts  of  workingmen  in  the  industries  under  their  juris- 
diction tending  to  disturb  order  or  discipline,  and  impose 
penalties  of  imprisonment  not  exceeding  three  days,  having 
for  this  concurrent  jurisdiction  with  the  justices  of  the  peace. 
Elaborate  arbitration  laws  also  exist  in  France,  and  when- 
ever any  strike  occurs,  if  the  parties  do  not  invoke  arbitra- 
tion the  justices  of  the  peace  must  intervene  to  conciliate. 
Still  there  is  no  compulsory  arbitration  except  by  agreement 
of  both  sides. 

Similar  laws  exist  in  Belgium,  Switzerland,  Germany, 
Austria,  Holland,  New  Zealand,  Australia,  and  Canada. 

The  apprentice  system  still  exists  in  perfection  in  all 
European  states,  including  Great  Britain,  although  there 
most  of  the  unions  restrict  the  number  that  may  be  em- 
ployed. In  the  United  States  it  has,  unfortunately,  fallen 
entirely  into  disuse. 

1  See  the  author's  Report  to  the  U.  S.  Industrial  Commission,  vol.  XVI, 
page  173. 


258  POPULAR  LAW-MAKING 

It  has  already  been  mentioned  that  the  factory  laws,  laws 
regulating  the  sanitary  conditions,  etc.,  of  factories  and 
sweat-shops,  are  far  more  complicated  and  intelligent  upon 
the  Continent,  and  even  in  England,  than  in  the  United 
States  of  America. 

Coming  finally  to  what  most  persons  consider  the  most 
important  line,  that  of  strikes,  boycotts,  and  intimidation,  the 
legislation  of  the  Continent  of  Europe  where  common-law 
principles  of  individual  liberty  do  not  interfere,  is,  of  course, 
far  more  complex  and  far  more  effective  than  that  of  either 
England  or  the  United  States.  The  principle  of  combination 
we  leave  for  the  next  chapter.  In  European  legislation,  where 
we  are  met  with  no  constitutional  difficulties,  we  shall  expect 
to  find  a  more  paternalistic  control  by  the  state,  although  in 
France  the  decree  of  March  2,  1791,  provided  that  every 
person  "shall  be  free  to  engage  in  such  an  enterprise  or 
exercise,  such  profession,  art  or  trade,  as  he  may  desire." 
In  Germany  an  elaborate  attempt  has  been  recently  made 
to  re-introduce  the  old  guild  system  made  over  from  its 
mediaeval  form  to  suit  modern  conditions,  and  in  other 
countries  where  the  government  does  not  interfere,  the  trade 
guilds,  or  unions,  present  insuperable  obstacles  to  any  one 
engaging  in  their  industry  who  is  not  a  member  of  the  guild 
or  has  not  gone  through  the  required  apprenticeship.1 

The  French  decree  of  1791  freeing  labor  took  effect  also 
in  French  Switzerland.  A  most  interesting  account  of  the 
experiment  of  the  Swiss  Cantons  on  freedom  of  labor  and 
the  guild  system  will  be  found  in  the  U.  S.  Industrial  Com- 
mission Report  above  referred  to.2  Germany  differs  from 
England  and  France  in  that  the  old  guild  system  was  never 
absolutely  done  away  with;  in  1807  serfdom  was  abolished 
in  Prussia,  and  a  decree  of  December,  1808,  apparently 
under  the  influence  of  Napoleon,  proclaimed  the  right  of 
citizens  freely  to  engage  in  such  occupations  as  they  desired. 
Exclusive  privileges  and  industrial  monopolies  were  abol- 

i  U.  S.  Industrial  Commission  Reports,  vol.  XVI,  p.  9.        2  Ibid.,  p.  10. 


EUROPEAN  LABOR  LAWS  259 

ished  by  subsequent  decrees,  and  the  general  movement  for 
the  freeing  of  industry  was  consummated  in  1845  by  the 
labor  code  of  that  year,  which,  by  the  labor  code  of  1883, 
extends  over  all  Germany:  "The  practice  of  any  trade  is 
made  free  to  all.  .  .  .  The  distinctions  between  town  and 
country  in  relation  to  the  practice  of  any  handicraft  trade  is 
abolished.  .  .  .  Trade  and  merchant  guilds  have  no  right 
to  exclude  others  from  the  practice  of  any  trade.  .  .  .  The 
right  to  the  independent  exercise  of  a  trade  shall  in  no  way 
depend  upon  the  sex.  .  .  ." 

It  will  be  seen  that  the  more  enlightened  European  coun- 
tries arrived,  under  the  influence  of  Napoleon  probably,  or  the 
French  Revolution,  in  the  early  part  of  the  last  century,  to 
the  point  of  specifically  adopting  the  English  common  law 
of  liberty  of  labor  and  trade  which  "organized  labor"  seems 
already  desirous  of  departing  from;  but  the  German  Civil  Code 
goes  on  to  say  (Section  611):  "By  the  contract  of  hiring  of 
services  the  person  who  promises  service  is  obliged  to  render 
the  promised  service,  and  the  other  party  is  obliged  to  the 
payment  of  the  salary  or  wage  agreed  upon.  All  nature  of 
services  may  be  the  subject  of  the  service  contract."  It 
would  seem,  therefore,  that  the  contract  may  be  specifically 
enforced.  So,  in  France,  by  the  law  of  1890,  "A  person 
can  only  bind  himself  to  give  his  services  for  a  certain  time 
or  a  special  enterprise.  The  hiring  of  services  made  with- 
out a  fixed  duration  can  always  cease  at  the  wish  of  one  of 
the  contracting  parties.  Nevertheless,  the  cancellation  of 
the  contract  at  the  wish  of  one  only  of  the  contracting  parties 
may  give  rise  to  damages."  It  would  appear,  therefore, 
that  definite  contracts  may  be  specifically  enforced.  Aus- 
tria has  somewhat  similar  laws,  although  a  larger  propor- 
tion of  industrial  employment  is  subject  to  state  regulation, 
and  here  no  employer  can  employ  any  workingman  without 
a  book  or  passbook,  which  serves  both  as  identification  and 
record.  Generally  in  Europe  the  use  of  a  written  contract 
» Ibid.,  pp.  11  and  12. 


260  POPULAR  LAW-MAKING 

in  labor  engagements  is  far  more  usual  than  with  us.  This, 
perhaps,  makes  it  easier  to  enforce  such  contracts  specifi- 
cally. Nevertheless,  I  find  no  specific  statute  on  the  sub- 
ject. Indeed,  the  Code  Napoleon  adopts  the  English  law 
and  provides1  that  "every  obligation  to  do  or  not  to  do 
resolves  itself  into  damages  in  the  case  of  non-performance," 
while  the  modern  English  law  act  of  1875  provides  a  special 
and  summary  remedy  in  the  county  courts  for  labor  disputes 
whereby  when  the  contract  is  not  rescinded  the  court  may 
award  damages  or  take  security  for  the  performance  of  the 
labor  contract  itself.  This,  however,  does  not  include 
domestic  servants.  Both  France  and  Belgium  copy  the 
common  law  as  to  slavery,  requiring  contracts  to  be  for  a 
certain  time  or  a  determined  work.  In  Russia,  however, 
contracts  may  be  made  for  five  years. 

It  is  still  true  that  no  European  country  outside  of  Turkey 
has  yet  fixed  by  law  the  amount  of  wages  in  private  em- 
ployments or  the  minimum  amount,  though  that  result  is 
effected  by  the  machinery  of  arbitration  in  Great  Britain 
and  New  Zealand.  Continental  countries,  however,  uni- 
versally legislate  as  to  hours  of  labor  even  of  adult  women, 
there  being  no  constitutional  principle  protecting  their  per- 
sonal liberty  in  that  particular,  although  in  Belgium  and 
Great  Britain  the  laws  do  not,  as  a  rule,  apply  to  adult  male 
labor.  The  hours  are  generally  eleven  or  twelve,  instead  of 
eight  or  nine  as  in  England  or  the  United  States.  There  is 
elaborate  special  regulation  of  times  and  conditions  in  labor 
in  railways,  laundries,  bakeries,  etc.  The  English  law  gen- 
erally divides  persons,  according  to  their  age,  into  three 
classes,  adults,  young  persons  (from  fourteen  to  eighteen),  or 
children,  and  the  system  is  most  elaborate.  Generally  no 
children  under  the  age  of  eleven  may  be  employed  at  all. 

Sanitary  and  social  regulations  are  far  more  intelligent 
than  ours.  Generally,  the  employment  of  women  in  fac- 
tories within  four  weeks  after  childbirth  is  forbidden;  and  in 

i  Ibid.,  p.  64. 


LABOR  LEGISLATION   IN  EUROPE  261 

Switzerland  it  is  forbidden  to  employ  pregnant  women  in 
certain  occupations  dangerous  to  the  health  of  posterity. 
The  German  Civil  Code  declares  that  "A  married  woman 
has  both  the  right  and  the  obligation  of  keeping  house.  She 
is  obliged  to  attend  to  all  domestic  labor  and  the  affairs  of 
her  husband  in  so  far  as  such  labor  or  occupation  is  usual 
according  to  her  social  condition.  She  is  supreme  within 
her  sphere,  or  at  least  has  power  to  act  or  bind  her  husband 
in  domestic  matters,  and  he  cannot  limit  her  powers  without 
a  divorce.  He  may,  however,  annul  any  contract  made  by 
her  for  her  personal  labor  with  a  third  party."  l 

The  anti-truck  and  weekly-payment  laws  exist  in  all 
countries.  Europe  generally,  particularly  Great  Britain  and 
the  Roman  Catholic  countries,  are  handicapped  by  an  infin- 
ity of  holidays.  In  Roman  Catholic  countries  they  are 
generally  single  days,  saints'  days,  etc.,  scattered  throughout 
the  year,  but  in  Great  Britain  no  skilled  laborer  will  work 
at  all  for  some  weeks  at  a  time. 

The  English  law  against  intimidation  is  the  model  of  the 
New  York  statute  and  most  others.  It  defines  in  great 
detail  what  intimidation  is — substantially,  that  it  is  violence 
or  threats,  the  persistently  following,  the  hiding  of  tools, 
etc  ,  or  the  watching  or  besetting  the  house  or  place  of  busi- 
ness— and  menaces,  as  well  as  actual  violence,  are  recognized 
as  unlawful  and  punishable  by  imprisonment,  in  Germany, 
Italy,  Sweden,  and  other  countries.  Germany  and  Austria 
copy  the  English  common  law  as  to  enticing  from  service. 

There  is  as  yet,  however,  no  evidence  in  Europe  outside 
of  Great  Britain  of  the  American  tendency  to  make  a  special 
privileged  class  of  skilled  or  industrial  labor.  So  far  as 
appears,  there  is  no  special  legislation  in  any  European 
country  which  is  concerned  particularly  with  the  legal  or 
political  rights  of  industrial  laborers.2  There  is  much  more 
co-operation  and  sympathy  between  employers  and  em- 
ployees, at  least  in  Continental  countries,  and  possibly  for 
» Ibid.,  p.  53.  2  Ibid.,  p.  77. 


262  POPULAR  LAW-MAKING 

this  reason  co-operation  has  proved  far  more  successful.1 
State  labor  bureaus,  state  insurance,  saving  banks,  and 
employment  agencies  are  almost  universal  throughout  the 
Continent. 

1  See  Oilman's  "A  Dividend  to  Labor,"  Boston,  1899.  Jones's  "Coopera- 
tive Production,"  Oxford,  1894. 


CHAPTER  XII 
COMBINATIONS  IN  LABOR  MATTERS 

We  have  now  gone  over  the  history  of  modern  legislation 
in  the  two  great  fields  of  property  and  personal  liberty,  and 
we  have  generally  found  that  the  same  principles  of  juris- 
prudence govern  both.  So  shall  we  now  find  when  we  come 
to  combinations  that  there  is  no  difference  or  distinction  in 
the  law  between  combinations  of  capital  and  combinations 
of  individual  faculties.  In  both  fields  a  "combine"  is  ob- 
noxious, as  the  untutored  mind  instinctively  feels.  Com- 
binations may,  of  course,  be  lawful;  but  the  fact  that  no 
actually  criminal  purpose  or  act  can  be  found  against  them 
is  not  conclusive  of  their  legality.  At  the  risk  of  wearying 
the  reader  I  would  reiterate  my  belief  that  this  was  one  of 
the  greatest  juristic  achievements  of  the  English  common 
law;  and  that  the  question  whether  it  shall  be  all  done  away 
with  or  retained  is  the  most  momentous  public  question  now 
before  us  in  industrial  and  social  matters.1  Whether,  on  the 
one  hand,  Standard  Oil  combinations  shall  be  permitted  to 
the  point  of  universal  monopoly  of  trade  and  opportunity; 
or,  on  the  other,  close  unions  built  up,  even  by  legislation 
itself,  to  an  equally  impregnable  position  of  monopoly  of 
opportunity,  or  so  as  to  become  a  universal  privileged  guild 
— are  questions  to  be  determined  by  the  same  principles; 
and  equally  momentous  to  the  future  of  our  republic  and  of 
human  society  as  now  constituted.  And  before  passing  to 
a  review  of  the  legislation  itself,  I  would  lay  down  the  princi- 

1  Professor  Dicey,  I  find,  in  his  recent  book,  "  Law  and  Opinion  in  Eng- 
land," opens  this  subject  with  a  statement  equally  strong  (Appendix,  note  1, 
pp.  465-6). 

263 


2G4  POPULAR  LAW-MAKING 

pie  which  I  believe  to  be  the  one  which  will  ultimately  be 
found  to  be  the  controlling  test:  that  of  intent.  The  effect 
(often  proposed  as  the  test)  is  really  immaterial  as  deter- 
mining the  illegality  of  the  combination,  except  so  far  as  it 
may  be  evidence  of  the  probable  intention  of  the  participa- 
tors at  its  inception. 

For  the  early  English  conspiracies  were  by  no  means 
necessarily  or  usually  aimed  at  the  commission  of  some 
definite  crime;  they  were  rather  described  to  be  the  conspira- 
cies of  great  lords  for  the  general  "oppression"  of  a  weaker 
neighbor,  for  which  he  sought  refuge  or  protection  in  the 
court  of  chancery.  Now,  general  oppression  or  wrong- 
doing, the  exclusion  from  land  or  labor  or  property  or  trade, 
by  a  powerful  combination,  is  precisely  the  moral  injury 
suffered  in  modern  boycotts  when  there  is  no  actual  crime 
committed.  Indeed,  one  of  the  earliest  kinds  of  conspiracy 
expressly  mentioned  and  described  in  the  English  statutes 
is  a  conspiracy  for  the  maintenance  of  lawsuits,  which  by  the 
very  definition  of  the  thing  must  be  a  combination  for  an 
end  not  in  itself  unlawful.  The  American  courts  have  been 
curiously  obscure  or  vacillating  on  this  point.  With  their 
too  general  forgetfulness  of  historical  legislation  and  the 
early  common  law,  they  have  gone  from  one  extreme  to  the 
other,  often  with  a  trivial  consideration  of  the  importance  of 
the  points  involved,  and  always  with  an  entire  absence  of  a 
universal  point  of  view,  of  that  genius  which  grasps  a  ques- 
tion in  its  entirety  and  is  not  confused  by  irrelevant  details. 
It  is  only  of  late  when  the  matter  has  come  before  the  Federal 
Supreme  Court  and  the  courts  of  a  few  States  which  have 
been  educated  by  a  frequent  recurrence  of  disputes  of  this 
sort  that  we  begin  again  to  see  the  principle  clearly,  as  I 
shall  venture  to  lay  it  down  here:  that  the  acts  of  a  number 
of  persons  combined  are  to  be  judged  by  their  intent.  In 
individual  acts  the  intent  is  of  no  importance  except  as  it 
turns  an  accident  into  a  crime;  chance-medley  for  instance 
into  murder,  or  mere  asportation  into  larceny,  or  ordinary 


THE  TEST  OF  UNLAWFUL  COMBINATION        265 

conversation  into  slander;  yet  these  few  instances  serve  to 
show  how  universal  is  the  recognition  of  intent  in  the  law 
and  how  little  difficulty  it  presents.  Juries  have  very  rarely 
any  difficulty  in  determining  this  question  of  intent  in  indi- 
vidual acts;  and  in  like  manner  they  will  have  no  difficluty 
when  it  is  recognized  as  the  fundamental  test  in  cases  of 
combination,  i.  e.,  conspiracy.  And  for  the  antiquity  of 
this  our  law  we  need  but  mention  a  few  cases:  Rex  v. 
Crispe,  cited  in  the  Great  Case  of  Monopolies  (7  State  Trials 
513):  "Here  was  lately  an  agreement  between  copperas 
makers  and  copperas  merchants  for  the  buying  of  all 
copperas,  and  that  these  copperas  makers  shall  for  three 
years  make  at  so  much  a  ton  and  restraining  them  from 
selling  to  others" — held  a  criminal  conspiracy;  of  the  tailors 
of  Ipswich  (6  Coke  103)  where  a  company  of  tailors  made 
a  by-law  to  exclude  non-members  from  exercising  their 
trade;  and  the  Lilleshall  case  (see  p.  71  above). 

Thus  in  matters  of  capital:  is  the  first  intent,  the  immedi- 
ate object,  to  increase  profits,  to  acquire  or  enjoy  property, 
to  enlarge  one's  business/  or  is  the  first  intention  to  destroy 
a  competitor  or  create  a  monopoly?  So  in  labor  combina- 
tions: is  the  first  object  to  get  better  terms  for  the  persons 
combining,  an  increase  of  wages  or  a  reduction  of  hours, 
improved  conditions  in  factories  and  shops,  etc.,  etc.,  or  is 
the  first  thing  they  are  seeking  to  do  to  injure  a  third  person, 
not  concerned  in  the  dispute,  or  to  control  the  liberty  and 
constitutional  right  of  the  employer  himself?  If  the  latter, 
it  is  "oppression"  within  the  meaning  of  the  early  common 
law,  and  should  be  so  held  to-day. 

And  not  only  is  this  great  domain  of  English  law  note- 
worthy because  it  is  so  subtle  as  to  grasp  the  effect  of  a  com- 
bination other  than  that  of  the  individual  acts,  and  the 
intent  of  that  combination  other  than  its  effect,  but  it  is 
perhaps  the  only  great  realm  of  law  which  really  attempts  to 

1  What  Mr.  Cooke  calls,  in  his  preface,  "  the  natural  incident  or  outgrowth 
of  some  lawful  relation."  Combination,  Monopolies  and  Labor  Unions,  p.  iv. 


266  POPULAR  LAW-MAKING 

carry  out  the  principle  of  the  Golden  Rule.  In  all  other  mat- 
ters, if  an  act  be  lawful,  it  remains  lawful,  although  done  with 
the  intent  of  injuring  another;  it  does  not  usually  even  give 
rise  to  an  action  for  damages;  but  the  great  principle  of  the 
English  law  of  conspiracy  was  crystallized  two  hundred  years 
ago  in  the  classic  phrase  of  Hawkins,  in  his  "  Pleas  of  the 
Crown,"  vol.  II,  p.  121:  "There  is  no  doubt  that  a  combina- 
tion made  to  the  prejudice  of  a  third  person  is  highly  criminal 
at  the  common  law."  l  The  usual  definition  of  conspiracy, 
that  is,  of  unlawful  combination,  is  a  combination  made  for 
an  unlawful  purpose  or  for  a  lawful  purpose  using  unlawful 
means;  this  is  to  be  found  in  all  the  text-books;  but  it  should 
be  amplified  in  accordance  with  our  earliest  and  deepest  law 
so  as  to  include  a  combination  for  the  mere  purpose  of  injur- 
ing another,  or  molesting  him  or  controlling  him  in  the 
exercise  of  his  ordinary  lawful  rights;  and  a  fortiori — as  of 
combinations  to  enhance  the  price  of  food — to  injure  the 
public.  It  is  for  this  reason  that  the  combination  of  many 
to  diminish  the  trade  of  one  is  an  unlawful  combination; 
the  combination  may  be  punished  although  all  the  acts  done 
are  within  the  letter  of  the  law;  and  when  the  conspiracy  is 
evidenced  by  unlawful  acts,  the  conspiracy  may  be  punished 
far  more  severely  than  the  acts  could  have  been  punished 
themselves.  We  have  noted  that  one  of  the  great  attempts 
of  organized  labor  to-day  is  to  do  away  with  this  principle, 
to  provide  that  no  combination  should  be  punished  when  the 
acts  committed  are  not  punishable  in  themselves,  and  that 
in  fact  it  should  be  the  acts  and  not  the  combination  which  is 
punishable  at  all.  This,  it  is  true,  was  enacted  by  the 


1  "The  position  cited  by  Chitty  from  Hawkins,  by  way  of  summing  up  the 
result  of  the  cases,  is  this:  'In  a  word,  all  confederacies  wrongfully  to  preju- 
dice another  are  misdemeanors  at  common  law,  whether  the  intention  is  to 
injure  his  property,  his  person,  or  his  character.'  And  Chitty  adds  that 
'  the  object  of  conspiracy  is  not  confined  to  an  immediate  wrong  to  individ- 
uals; it  may  be  to  injure  public  trade,  to  affect  public  health,  to  violate  pub- 
lic police,  to  insult  public  justice,  or  to  do  any  act  in  itself  illegal  (3  Chit. 
Grim.  Law,  1139)."  Quoted  by  Shaw,  Chief  Justice  of  Massachusetts,  in 
Commonwealth  v.  Hunt  (4  Mete.  Illinois),  printed  as  a  Senate  Document  in 
the  57th  Congress,  1st  session  (Mass.)  111. 


DESIRED  CHANGE  IN  LAW  OF  CONSPIRACY     267 

English  Conspiracy  and  Protection  of  Property  Act  of  1875, 
as  to  industrial  disputes  only,  in  England;  arid  it  is  just  as 
true  that  it  would  be  unconstitutional  in  this  country,  both 
under  the  Federal  and  State  constitutions.  Yet  the  agitation 
for  this  revolution  in  the  common  law  has  been  successful 
in  Maryland,  California,  and  Oklahoma,  though,  as  has 
been  said,  it  does  not  appear  that  any  cases  have  yet  been 
tried  where  the  exception  was  pleaded  in  defence,  still  less 
where  the  statute  has  been  sustained  as  constitutional. 

It  is  to  be  noted  that  the  original  English  Act  of  1875  only 
did  away  with  the  criminal  liability  and  left  the  victims  of  the 
boycott  or  blacklist  free  to  sue  the  combination  for  damages; 
but  by  the  "Trade  Disputes  Act,"  6  Edward  7,  chapter  47 
(December  21,  1906)  the  following  paragraph  was  added: 

"An  act  done  in  pursuance  of  an  agreement  or  combina- 
tion by  two  or  more  persons  shall,  if  done  in  contemplation 
or  furtherance  of  a  trade  dispute,  not  be  actionable  unless 
the  act,  if  done  without  any  such  agreement  or  combination, 
would  be  actionable." 

And  also  a  clause  as  to  picketing: 

"It  shall  be  lawful  for  one  or  more1  persons,  acting  on 
their  own  behalf  or  on  behalf  of  a  trade-union  or  of  an  indi- 
vidual employer  or  firm  in  contemplation  or  furtherance  of 
a  trade  dispute,  to  attend  at  or  near  a  house  or  place  where 
a  person  resides  or  works  or  carries  on  business  or  happens 
to  be,  if  they  so  attend  merely  for  the  purpose  of  peacefully 
obtaining  or  communicating  information,  or  of  peacefully 
persuading  any  person  to  work  or  to  abstain  from  working." 

And  another  upon  inducing  the  breaking  of  contracts,  loss 
of  service: 

"An  act  done  by  a  person  in  contemplation  or  furtherance 
of  a  trade  dispute  shall  not  be  actionable  on  the  ground  only 
that  it  induces  some  other  person  to  break  a  contract  of 
employment  or  that  it  is  an  interference  with  the  trade, 
business,  or  employment  of  some  other  person,  or  with  the 
1  The  italics  are  our  own. 


268  POPULAR  LAW-MAKING 

right  of  some  other  person  to  dispose  of  his  capital  or  his 
labor  as  he  wills." 

Furthermore,  after  the  Taff  Vale  case,  trades-unions  were 
exempted  from  all  liability: 

"  (1)  An  action  against  a  trade-union,  whether  of  workmen 
or  masters,  or  against  any  members  or  officials  thereof  on 
behalf  of  themselves  and  all  other  members  of  the  trade- 
union  in  respect  of  any  tortious  act  alleged  to  have  been 
committed  by  or  on  behalf  of  the  trade-union,  shall  not  be 
entertained  by  any  court. 

"(2)  Nothing  in  this  section  shall  affect  the  liability  of 
the  trustees  of  a  trade-union  to  be  sued  in  the  events  pro- 
vided for  by  the  Trades-Union  Act,  1871,  section  nine,  except 
in  respect  of  any  tortious  act  committed  by  or  on  behalf  of  the 
union  in  contemplation  or  in  furtherance  of  a  trade  dispute. 

"  (3)  In  this  act  and  in  the  Conspiracy  and  Protection  of 
Property  Act,  1875,  the  expression  'trade  dispute'  means 
any  dispute  between  employers  and  workmen,  or  between 
workmen  and  workmen,  which  is  connected  with  the  em- 
ployment or  non-employment,  or  the  terms  of  the  employ- 
ment, or  with  the  conditions  of  labor,  of  any  person,  and  the 
expression  'workmen'  means  all  persons  employed  in  trade 
and  industry,  whether  or  not  in  the  employment  of  the 
employer  with  whom  a  trade  dispute  arises;  and,  in  section 
three  of  the  last-mentioned  act,  the  words  'between  em- 
ployers and  workmen*  shall  be  repealed." 

It  is  hard  to  say  whether  any  part  of  this  surprising  statute 
would  be  constitutional  in  this  country,  except  the  second 
paragraph  ( p.  267,  above ) ;  leaving  out  even  there  the  words 
"or  more."  Certain  it  is  that  by  it  industrial  conditions  are 
placed  under  the  sway  of  the  labor  unions,  and  the  com- 
merce and  prosperity  of  England  now  lie  in  the  "hollow  of 
the  hand"  of  those  who  work  with  it. 

This  effort  to  do  away  with  the  law  of  combinations  in 
labor  matters  with  that  aimed  at  forbidding  or  controlling 
the  injunction  in  labor  disputes,  and  with  also  the  statutes 


PICKETING,  BLACKLISTING,  BOYCOTTING       269 

which  give  a  special  privilege  to  union  labor,  we  have  found 
to  be  among  the  most  important  pieces  of  modern  legisla- 
tion. Alabama  and  Colorado  have  statutes  legalizing  "  pick- 
eting," but  a  similar  bill  in  Massachusetts  failed  repeatedly 
of  enactment.  But  when  we  come  to  the  statutes  applying 
to  combinations  solely,  and  defining  them,  there  have  been 
many  statutes  declaring  blacklisting  and  boycotts  to  be 
unlawful — which  is  merely  the  common  law — and  a  few 
statutes  especially  forbidding  them.  Thus,  by  the  year 
1907,  twenty-two  States  and  the  United  States  had  statutes 
against  blacklisting,  five  had  statutes  against  boycotting,  ten 
had  adopted  laws  regulating  strikes  in  cases  of  railway  em- 
ployment, Minnesota  a  law  forbidding  any  employer  to 
require  as  a  condition  of  employment  any  statement  as  to 
the  participation  of  the  applicant  in  a  strike  for  more  than 
one  year  immediately  preceding,  Oklahoma  a  law  requiring 
him  to  advise  new  applicants  for  employment  of  any  labor 
dispute  then  pending  with  him,  and  to  give  such  notice  in 
his  advertisements;  which  statute  barely  failed  of  enactment 
in  Massachusetts.  The  best  definition  of  the  boycott  is, 
perhaps,  to  be  found  in  the  law  of  Alabama:  "Any  two  or 
more  persons  who  conspire  together  for  the  purpose  of  pre- 
venting any  person,  persons,  firm,  or  corporation  from  carry- 
ing on  any  lawful  business,  or  for  the  purpose  of  interfering 
with  the  same,  shall  be  guilty  of  a  misdemeanor. "  The 
most  cumbrous  is  that  of  Indiana,  which,  attempting  to  ex- 
press the  matter  in  more  detail,  is  far  too  long  to  quote.1 
Many  acts  which  are  really  part  of  a  boycott,  or  unlawful, 
i.  e.,  sympathetic  strikes,  will  be  found  under  the  heading 
"Intimidation"  or  "Interference  with  Employment"  in 
other  States;  such  is  the  recent  statute  of  Washington  (see 
above,  p.  251).  Unless  the  function  of  a  statute  be  to  instruct 
the  ignorant,  it  would  probably  be  better  to  forego  all  such 
definitions  and  rely  upon  the  elasticity  of  the  common  law. 

1  Indiana  Revision  of  1901,  Sec.  3312  M.  There  is  also  an  elaborate  defi- 
nition of  "trusts,"  "conspiracies,"  and  "boycotts"  in  chapter  94  of  the  Laws 
of  Texas,  1903. 


270  POPULAR  LAW-MAKING 

As  an  example  of  the  most  advanced  labor  legislation  we 
may  briefly  digest  the  Oklahoma  laws  of  1907-8: 

By  the  Act  of  May  29,  1908,  two  hours  must  be  allowed  by 
every  corporation  or  individual  employer  to  his  employees  to 
vote,  and  it  is  made  a  misdemeanor  to  in  any  way  influence 
his  vote;  and  there  is  a  general  labor  code  enacted  May  22, 
1908,  which,  with  its  supplements,  is  perhaps  the  most  radi- 
cal labor  legislation  to  be  found  in  the  United  States.  After 
establishing  a  State  commissioner  of  labor,  a  board  of  con- 
ciliation and  arbitration,  and  free  employment  offices,  all  of 
which  are  usual  in  other  States,  there  is  an  elaborate  chap- 
ter on  factory  regulation  and  one  upon  mine  regulations, 
and  to  protect  persons  working  on  buildings,  railroads,  steam 
boilers,  etc.,  and  a  carefully  drawn  statute  regulating  the 
labor  of  children.  Then  there  are  other  provisions  which 
are  more  unusual.  The  Canadian  statute  substantially  is 
enacted  as  to  strikes:  "whenever  there  shall  exist  a  strike 
or  lockout  where  (in  the  judgment  of  the  State  Board  of  Con- 
ciliation) the  general  public  shall  appear  likely  to  suffer 
injury  or  inconvenience,  and  neither  party  consents  to  an 
arbitration,"  then  the  board,  having  failed  to  effect  a  concil- 
iation, may  proceed  on  its  own  motion  to  make  investiga- 
tion and  propose  a  settlement,  with  recommendations  to> 
both  parties,  and  presumably  publish  the  same.  It  has,  of 
course,  no  power  to  enforce  a  settlement,  but  may  compel 
testimony,  etc.  (Article  II,  section  4.) 

Private  employment  offices  are  carefully  regulated,  the 
fees  limited  to  two  dollars,  and  the  money  must  be  returned 
if  no  place  is  found,  with  careful  provisions  against  sending 
help  to  immoral  resorts. 

The  compelling  of  an  agreement,  either  written  or  "ver- 
bal," 1  not  to  join  a  labor  union  as  a  condition  of  obtain- 
ing or  continuing  in  employment  is  made  a  misdemeanor, 
punishable  with  one  thousand  dollars  fine  and  twelve  months 
imprisonment. 

1  A  common  vulgarism;  the  law  probably  means  "oral." 


THE  OKLAHOMA  LABOR  CODE  271 

Section  2  of  this  act  (June  6,  1908)  copies  the  older 
English  statute  of  1875;  that  is  to  say,  it  does  away  with 
all  criminal  liability  for  conspiracies  in  labor  matters,  and 
it  further  provides  that  no  "such  agreement,  combination, 
or  contract  be  construed  as  in  restraint  of  trade  or  com- 
merce; nor  shall  any  restraining  order  or  injunction  be  issued 
with  relation  thereto,  provided  only  that  nothing  in  this  act 
shall  be  construed  to  authorize  force  or  violence."  We  have 
already  commented  on  the  possible  unconstitutionality  of 
this  act. 

Section  3  makes  it  unlawful  for  anybody  to  induce  or  per- 
suade workmen  to  change  from  one  place  to  another  (except 
presumably  the  labor  unions  themselves),  or  to  bring  work- 
men into  the  State  by  means  of  any  false  or  deceptive  repre- 
sentations, false  advertising  or  false  pretences,  or  by  reason 
of  the  existence  of  a  strike  or  other  "trouble."  Failure  to 
state  in  an  advertisement,  proposal  or  contracts  for  the  em- 
ployment of  workmen  that  there  is  a  strike  or  other  "trouble" 
is  made  a  criminal  offence,  punishable  with  a  year's  imprison- 
ment or  two  thousand  dollars  fine  (this  is  the  law  which  failed 
of  passage  in  the  Massachusetts  Legislature  of  1910). 

The  hiring  of  armed  guards,  as  is  usual  in  the  West,  is 
made  heavily  criminal.  Finally,  to  workmen  who  have  been 
influenced  or  persuaded  to  do  anything  by  anybody  except 
another  workman,  is  given  a  suit  for  damages  against  the 
person  so  persuading  them.  The  lot  of  the  employer  in 
Oklahoma  is  indeed  a  parlous  one! 

By  the  law  of  April  24,  whenever  a  workman  is  discharged, 
his  employer  must  give  him  a  letter  stating  the  reason  truly, 
under  penalty  of  five  hundred  dollars  fine  and  one  year's 
imprisonment,  and  such  letter  must  be  written,  not  printed, 
and  the  form  and  appearance  of  the  stationery  is  carefully 
provided  for  and  all  secret  marks  forbidden.  Oklahoma 
is  one  of  the  eight-hour  States,  with  the  minimum  average 
wage  in  public  work,  referred  to  aboye;  and  all  contracts 
must  be  made  on  that  basis.  Wages  must  be  paid  fort- 


272  POPULAR  LAW-MAKING 

nightly  in  cash  by  all  persons  or  corporations  engaged  in 
mining  or  manufacturing. 

Oklahoma  is  the  test-tube  of  American  legislative  reac- 
tions. We  shall  await  with  interest  the  legislation  of  1911,  as 
well  as  the  effect  of  the  laws  we  have  summarized  above.  In 
the  meantime  Oklahoma  has  presented  to  the  constitutional 
lawyer  the  long-sought  problem  of  whether  a  sovereign  State 
once  admitted  to  the  Union  is  bound  by  the  Act  of  Congress 
authorizing  such  admission.  The  enabling  act  of  Okla- 
homa required  that  its  capital  should  be  fixed  at  Guthrie  and 
not  moved  for  a  period  of  years.  In  May,  1910,  within  such 
period  of  limitation,  by  act  of  legislature,  supplemented  by 
a  plebiscitum  of  the  people  and  the  executive  action  of  Gov- 
ernor Haskell,  the  capital  was  removed  to  Oklahoma  City, 
and  the  State  seal  conveyed  there  surreptitiously,  in  spite  of 
the  injunction  of  a  Federal  district  court.  A  more  beautiful 
American  constitutional  question  could  hardly  be  presented. 
It  may  not  at  first  seem  to  the  reader  so  important,  but  when 
he  considers  that,  for  instance,  Utah  and  other  Western  States 
have  abolished  Mormonism  in  the  same  manner,  or  have 
agreed  to  give  equal  treatment  to  the  Japanese  and  Chinese 
in  the  same  manner — by  an  enabling  act  of  Congress,  ratified 
and  perpetuated  in  the  State  Constitution — he  will  see  the 
importance  of  the  question.  It  was  anticipated  in  the 
writer's  work  on  constitutional  law  ("  Federal  and  State  Con- 
stitutions," p.  186,  note  8):  "The  enabling  acts  admitting 
the  eight  new  Western  States  usually  provided  against  polyg- 
amy on  account  of  the  Mormon  influence,  and  this,  with 
other  provisions  concerning  schools,  etc.,  was  made  forever 
irrepealable  without  the  consent  of  the  United  States;  see 
Utah  3,  1.  This  is  probably  only  a  moral  obligation;  a 
State  when  once  admitted  comes  in  with  all  the  rights  of  the 
older  States.  So  far  as  this  section  is  concerned,  Utah 
could  probably  amend  her  Constitution  and  re-establish 
Mormonism  to-morrow." 

European  legislation  is  necessarily  more  elaborate  because 


THE  RIGHT  OF  ASSOCIATION  273 

there  is  usually  no  body  of  existing  common  law.  Trades- 
unions  are  universally  made  lawful,  as  they  are  with  us. 
But  in  France  in  certain  cases  the  consent  of  the  government 
to  the  formation  of  such  organizations  is  necessary;  and  the 
Code  Napoleon  made  unlawful  all  combinations  of  persons 
with  an  "evil  end/' 1  So,  "full  freedom  of  association"  is 
now  guaranteed  in  Switzerland;  and  in  Germany  the  trade 
guilds  are  largely  recognized,  but  membership  must  not  be 
compulsory.  In  Austria  a  strict  governmental  control  is 
exercised,  and  the  principle  of  obligatory  guilds  is  unreserv- 
edly accepted.  There  does  not  appear  to  be  any  legislation 
upon  strikes  except  in  Great  Britain,  France,  and  Italy,  such 
matters  being  left  largely  to  the  political  or  police  authori- 
ties. Strikes  were  unlawful  in  England  until  comparatively 
recent  times,  but  were  always  lawful  in  this  country,  and 
are  so  by  the  modern  French  law,  which  *s  much  similar  to 
ours,  as  is  the  case  in  Italy;  but  in  Russia  the  leaders  of  a 
strike  may  be  imprisoned. 

In  no  country  do  I  find  any  specific  legislation  as  to  boy- 
cotts, except  the  English  statute  already  referred  to,  repeal- 
ing the  common  law  of  conspiracy,  both  civil  and  criminal, 
in  industrial  disputes.  Germany  and  Austria  have  black- 
listing laws.  The  matter  of  riots,  etc.,  is  generally  left  to 
the  criminal  law  to  control.  In  no  country -other  than  the 
United  States  do  I  find  any  prohibition  against  a  man's  pro- 
tecting his  own  property  with  private  guards,  armed  or  other- 
wise. 

Arbitration  laws  in  the  British  colonies  are  very  generally 
aimed  at  the  prevention  of  strikes.  Otherwise  there  seems 
to  be  less  legislation  on  the  subject  during  the  last  ten  years 
than  might  have  been  expected.  The  Orange  River  Colony 
has  severe  laws  concerning  the  labor  of  the  blacks,  of  a  nat- 
ure resembling  our  peonage  laws  in  the  Southern  States. 
Similar  conditions  seem  to  lead  to  similar  legislation  through- 
out the  modern  world. 

1  Quoted  in  Dane's  Abridgment,  published  in  1800. 


274  POPULAR  LAW-MAKING 

Legislation  is  now  much  desired  here  also  to  obviate 
the  effect  of  the  Taff  Vale  case  and  that  of  the  Danbury 
hatters  which  applies  its  principals  to  interstate  commerce; 
that  is  to  say,  which  shall  secure  the  funds  of  a  trades- 
union  to  its  benevolent  purposes,  or  even  to  its  use  in 
industrial  disputes,  strikes,  boycotts,  etc.,  without  making 
it  liable  for  the  results  of  litigation.  In  these  cases  the 
moneys  in  the  treasury  of  a  trades-union,  although  unincor- 
porated, have  been  held  responsible  for  damages  awarded 
in  a  suit  brought  against  the  union  or  its  members  for 
conspiracy  under  the  Sherman  Act,  or  otherwise.  It  is, 
however,  difficult  to  see  how  such  legislation  with  us  could 
be  devised  so  as  to  be  constitutional,  for  it  would  necessarily 
extend  only  to  a  certain  class  of  persons,  and  be  framed 
to  exempt  them  alone  from  a  certain  definite  legal  liability. 
Nevertheless  it  has  in  England  been  enacted.1 

1  See  above,  p.  268:  The  Trade  Disputes  Act,  1906,  sec.  4. 


CHAPTER  XIII 

MILITARY  AND  MOB  LAW,  AND  THE  RIGHT  TO 

ARMS 

We  now  come  to  a  field  of  legislation  related  to  the  early 
English  constitutional  right  to  be  protected  from  military 
law  or  molestation  by  the  army,  and  the  corresponding  right 
of  protection  of  one's  person,  or  one's  house,  by  force,  if 
necessary. 

The  right  of  law,  even  as  against  the  military,  has  been 
anticipated  in  an  early  chapter;  the  right  to  try  an  officer, 
or  even  a  soldier  obeying  orders,  in  the  ordinary  tribunals, 
for  homicide,  or  for  ordinary  trespass,  as  when,  in  the  Dorr 
rebellion  in  Rhode  Island,  a  company  of  militia  invaded  a 
woman's  house.1  The  constitutional  principle  against  the 
quartering  of  soldiers  upon  private  dwellings,  and  the  limi- 
tations to  the  military  power  caused  by  the  strict  confine- 
ment of  the  use  of  the  army  to  cases  of  invasion  or  insurrec- 
tion, have  been  added  by  American  constitutions.  But 
most  important  of  all  is  the  supremacy  of  the  common  law; 
the  grudging  permission  of  military  law  even  to  the  army 
themselves  only  by  a  temporary  vote;  for  in  England,  the 
Mutiny  Act  must  be  passed  annually,  and  in  the  United 
States,  appropriations  for  the  army  and  navy  may  not  last 
over  two  years.  It  is  these  statutes  alone  that  make  possi- 
ble the  very  government  of  the  army,  the  enforcement  of 
the  contract  of  enlistment,  and  the  condign  punishment  of 
deserters. 

For  example,  let  us  remember  the  Boston  Massacre.  Ten 
years  before  the  Revolution,  some  turbulent  men,  mostly 

»  Martin  v.  Mott,  12  Wheaton,  19. 
275 


276  POPULAR  LAW-MAKING 

negroes,  started  a  riot  against  British  soldiers  on  what  is  now 
State  Street  (then  King  Street),  and  under  the  orders  of  the 
commanding  officer  the  soldiers  fired,  and  two  or  three  men 
were  killed.  Yet  although  the  colonies  were  already  under 
military  occupation,  and  their  courts  and  legislatures  more 
than  unpopular  with  the  home  government,  these  British 
soldiers  were  tried  for  manslaughter  and  murder,  not  in 
England,  but  in  the  ordinary  common-law  courts  of  the 
Colony  of  Massachusetts.  James  Otis  defended  them  and 
they  were  acquitted.  The  fact  that  a  monument  to  Crispus 
Attocks,  the  negro,  now  stands  on  Boston  Common,  and 
that  ten  or  twelve  years  later  the  British  flag  was  expelled 
from  Boston  to  seek  refuge  in  New  York,  does  not  mod- 
ify the  significance  of  the  incident.  Some  years  since  in 
a  Pennsylvania  strike  a  small  company  of  militia,  being 
attacked  by  a  mob,  were  ordered  to  fire.  They  did  so,  and 
killed  one  of  the  striking  rioters.  It  was  found  out  which 
private  had  fired  the  fatal  shot;  he  was  indicted  and  tried 
for  murder;  and  it  was  ruled  that  the  order  of  the  command- 
ing officer  was  no  defence. 

These  principles,  we  should  be  reminded,  are  fundamental; 
in  our  own  country  in  time  of  peace,  or  even  in  time  of  war, 
except  in  hostile  territory,  there  is  no  such  thing  as  martial 
law ;  and  no  such  thing  as  military  law,  except  for  the  army 
itself,  and  then  only  by  the  sufferance  of  a  biennial  vote, 
which  vote  also  limits  the  duration  of  existence  of  the  reg- 
ular army;  besides  which,  all  our  State  constitutions  and 
the  Declaration  of  Independence  have  a  general  provision 
against  standing  armies.  The  proclamations  of  military 
officers,  of  mayors  of  cities,  or  even  State  governors,  declaring 
martial  law,  or  suspending  the  writ  of  habeas  corpus,  are  of 
no  legal  validity;  this  is  true  of  a  similar  proclamation  by 
the  President  of  the  United  States,  though  it  was  frequently 
done  by  Abraham  Lincoln.  The  act  of  Mayor  Ruef  of  San 
Francisco,  even  at  the  time  of  the  earthquake,  declaring 
martial  law,  or  giving  troops  or  vigilance  committees  sum- 


MARTIAL  AND  MILITARY  LAW  277 

mary  powers  of  punishment,  was  a  mere  "bluff."  Such  an 
order,  though  in  practice  obeyed  by  all  good  citizens,  would 
in  no  way  protect  those  acting  under  it  from  prosecution  in 
the  criminal  or  civil  courts. 

On  the  other  hand,  the  right  to  bear  arms  is  inherent 
under  English  ideas,  and  this  alone,  with  the  corresponding 
right  of  political  assembly,  has  served  largely  to  maintain 
English  liberty;  while  the  absence  of  these  two  important 
rights  has  relieved  countries  like  Russia  from  all  fear  of 
revolution.  One  has  only  to  read  Mr.  George  Trevelyan's 
vivid  account  of  the  difficulties  of  the  Garibaldi  movement 
to  free  Italy  in  1860,  to  realize  the  enormous  difficulties  un- 
der which  the  great  patriot  labored  from  the  absence  of 
these  underlying  principles.  Indeed,  but  for  the  connivance 
of  the  Piedmontese  government  in  allowing  somebody  to 
sell  a  thousand  condemned  rifles,  it  is  probable  that  there 
would  have  been  no  revolution  in  Sicily. 

Now  this  Anglo-Saxon  right  to  arms  goes  back  to  times 
before  the  very  dawn  of  the  English  Constitution,  and  the 
fyrd  or  local  militia  was  in  Saxon  times,  as  it  was  declared 
to  be  by  our  American  State  constitutions  of  the  eighteenth 
century,  "the  natural  and  only  defence  of  a  free  country." 
This  principle  was  very  soon  re-established  after  the  Con- 
quest. We  find,  as  early  as  1181,  the  Assize  of  Arms,  which 
revives  the  ancient  fyrd  or  militia.  Twenty-two  years  before 
scutage  had  been  substituted  for  military  service;  but  this 
was  merely  a  matter  of  feudal  tenure.  Yet  so  early  was  a 
direct  call  for  troops  forbidden  to  the  crown.  The  contest 
of  English  ideals  against  Norman  ideas  was  one  of  the  prin- 
cipal causes  of  Magna  Charta  itself  (it  is  significant  that 
the  Great  Charter  was  never  published  in  French);  the 
barons  were  required  to  support  the  king  in  war,  but  com- 
plained against  being  led  out  of  the  kingdom;  and  King 
John's  insistence  upon  this  led  to  the  assembly  at  Run- 
nymede.  Thus  the  militia  and  the  maintenance  of  arms 
other  than  of  feudal  retainers — and  this  exception  led  to 


278  POPULAR  LAW-MAKING 

the  statutes  against  maintainors— passed  out  of  the  executive 
power  and  became  the  province  of  the  legislative  branch; 
a  principle  carried  out  in  all  our  constitutions;  they  make 
the  executive  the  commander-in-chief  of  the  army,  navy, 
or  militia,  but  the  governor  may  usually  not  command 
in  the  field,  nor  order  troops  out  of  a  State;  and  the  president 
cannot  employ  Federal  troops  in  a  State,  except  when 
requested  by  its  legislature;  save  only  where  necessary  to 
maintain  the  functions  of  the  Federal  government  itself,  or 
when  a  State  government  ceases  to  be  republican  in  form — 
but  of  that  last  who  is  to  be  the  judge  ? 

With  the  doing  away  of  direct  military  service,  never  yet 
to  be  re-established  in  England,  though  the  threat  of  con- 
scription is  now  made,  disappeared  the  power  of  the  king  to 
control  his  people;  and  this  prevented  the  establishment  of 
a  royal  autocracy  and  the  extinction  of  representative  gov- 
ernment which  took  place  in  every  Continental  State.  It  is 
a  picturesque  fact  that  mercenary  soldiers  were  first  em- 
ployed in  England  in  small  numbers  to  suppress  Jack  Cade 
in  1449,  who  was  leading  a  labor  insurrection;  just  as  the 
first  instance  where  Federal  troops  were  employed  in  intra- 
State  matters  in  America  was  when  President  Cleveland  sent 
them  to  suppress  rioters  interfering  with  the  movement  of 
mails  in  the  Pullman  strike  in  Chicago. 

With  standing  armies  abolished,  and  the  fear  of  invasion 
removed,  the  practice  of  keeping  arms  fell  into  disuse,  so 
that  curiously  enough  we  find  under  the  Stuarts  statutes 
compelling  citizens  to  keep  and  bear  arms,  just  as  we  find 
statutes  compelling  them  to  take  their  seats  in  Parliament. 
For  quite  three  centuries  we  find  no  legislation  concerning 
arms,  and  Hallam  mentions  that  by  1485  six  liberty  rights 
were  established,  among  them  that  "officers,  administrators 
or  soldiers  are  liable  for  their  acts  at  the  common  law." 
It  is  not  until  1679  under  Charles  II,  the  very  year  of  the 
Habeas  Corpus  Act,  that  standing  armies  are  definitely 
established  in  England,  and  the  Mutiny  Act  concerning  the 


THE  RIGHT  TO  ARMS  AND  STANDING  ARMIES    279 

government  of  the  army  was  first  passed.  The  struggle  of 
the  people  with  the  army  under  Charles  I  may  be  well  shown 
by  these  quotations  from  the  Petition  of  Right  in  1628: 

"...  of  late  great  companies  of  soldiers  and  mariners  have 
been  dispersed  into  divers  counties  of  the  realm,  and  the  inhabi- 
tants against  their  wills  have  been  compelled  to  receive  them  into 
their  houses  and  there  to  suffer  them  to  sojourn,  against  the  laws 
and  customs  of  this  realm  ..." 

"...  certain  persons  have  been  appointed  commissioners,  with 
power  and  authority  to  proceed  .  .  .  according  to  ...  martial 
law  .  .  .  and  by  such  summary  course  and  order  as  is  agreeable  to 
martial  law,  and  as  is  used  in  armies  in  time  of  war,  to  proceed  to 
the  trial  and  condemnation  of  such  offenders,  and  them  to  cause 
to  be  executed  and  put  to  death  according  to  the  law  martial.  By 
pretext  whereof  some  of  your  Majesty's  subjects  have  been  by 
some  of  the  said  commissioners  put  to  death,  when  and  where,  if 
by  the  laws  and  statutes  of  the  land  they  had  deserved  death,  by 
the  same  laws  and  statutes  also  they  might  and  by  no  other  ought, 
to  have  been  judged  and  executed." 

And  by  the  Bill  of  Rights  of  1689: 

"That  the  subjects  which  are  Protestants  may  have  arms  for 
their  defence  suitable  to  their  conditions,  and  as  allowed  by  law." 

"That  the  raising  or  keeping  a  standing  army,  within  the  king- 
dom in  time  of  peace,  unless  it  be  with  consent  of  Parliament,  is 
against  law." 

Now  it  often  happens  that  a  great  constitutional  principle 
established  with  some  difficulty  in  England  is  amplified  and 
perfected  by  the  bolder  statement  in  American  constitutions. 
Thus,  the  Virginia  Bill  of  Rights,  1776,  has  the  perfect 
definition : 

"  That  a  well-regulated  militia,  composed  of  the  body  of  the  peo- 
ple, trained  to  arms,  is  the  proper,  natural,  and  safe  defence  of  a 
free  State;  that  standing  armies  in  time  of  peace  should  be  avoided 
as  dangerous  to  liberty;  and  that  in  all  cases  the  military  should 
be  under  strict  subordination  to,  and  governed  by,  the  civil  power." 

Similar  declarations  are  found  in  the  Declaration  of  Inde- 
pendence the  same  year,  and  the  Massachusetts  Bill  of 


280  POPULAR  LAW-MAKING 

Rights  four  years  later;  but  the  Virginia  definition,  being 
the  work  of  Thomas  Jefferson,  is  both  the  most  compendious 
and  the  most  concise,  and  is  substantially  copied  in  the 
Second  and  Third  Amendments  of  the  Federal  Constitution. 
Modern  legislation  on  the  subject  has  found  little  to  improve, 
although,  with  the  ignorance  of  constitutional  history  too 
often  found  in  modern  statutes,  we  do  find  State  laws  which 
recognize  martial  law  as  a  really  existent  domain  of  English 
and  American  jurisprudence.  As  our  greatest  jurists  have 
often  enough  declared:  "martial  law"  is  nothing  but  the  will 
of  the  commanding  officer,  the  negation  of  all  law,  which  exists 
when  the  courts  do  not  sit  and  the  writ  of  habeas  corpus 
does  not  run.  Even  in  these  imperial  days,  I  detect  no 
tendency  in  the  legislation  of  the  States,  or  even  of  the  Federal 
government  in  North  America,  to  infringe  upon  these  great 
principles  of  freedom.  On  the  contrary,  many  State  con- 
stitutions, as  well  as  an  act  of  Congress,  declare  that  the  writ 
of  habeas  corpus  can  never  be  suspended  by  the  executive, 
but  only  by  the  people's  representatives  in  the  legislature. 
The  prejudice  against  standing  armies  does  not  seem  to  be 
as  strong,  in  that  ours  has  recently  been  quadrupled  in  size; 
but  this  is  probably  no  more  than  proportionate  to  our 
national  expansion.  Many  of  the  States  in  this  time  of 
increasing  civic  disorder  have  had  to  give  their  attention  to 
the  suppression  of  mobs,  and  correspondingly  we  very  gen- 
erally find  new  complete  codes  governing  the  militia.  Thus 
statutes  are  frequent  exempting  a  private  soldier  from  pros- 
ecution for  murder  when  he  fires  under  the  orders  of  his 
commanding  officer;  and  the  honest  judgment  of  the  com- 
manding officer  is  made  a  defence  for  all  acts  of  his  troops  in 
attacking  mobs,  even  to  the  point  of  fatalities  resulting. 
Counties  or  cities  are  very  generally  made  liable  for  damage 
to  property  done  by  mobs,  and  in  some  States  for  damage  to 
life  done  by  lynchers;  the  widow  and  children  of  the  person 
lynched  may  recover  damages.  In  Kansas,  by  a  statute  of 
1900,  it  is  made  a  misdemeanor  for  a  bystander  to  refuse  to 


THE  LAW  OF  MOBS  AND  RIOTS  281 

assist  a  sheriff  in  quelling  a  riotous  disorder.  Most  significant, 
perhaps,  of  this  militia  legislation  is  that  concerning  its 
relation  to  the  labor  unions,  and  more  significant  still,  the  too 
apparent  desire  of  labor  unions  to  prevent  their  members  from 
serving  in  the  militia.  Thus,  New  York  and  other  States 
have  already  found  it  necessary  to  enact  statutes  prohibiting 
any  discrimination  against  persons  because  they  serve  in  the 
militia;  prohibiting  their  employers  from  discharging  them 
by  reason  of  their  necessary  absence  on  such  service,  and 
forbidding  the  labor  unions  from  in  any  way  preventing 
them,  or  passing  by-laws  against  their  serving  in  the  militia. 
Such  by-laws  are,  however,  unlawful  under  the  common 
law. 

The  law-making  most  in  the  popular  mind  on  this  whole 
question  is  that  concerning  pensions.  As  is  well  known, 
the  Federal  pension  list  has  swollen  to  a  sum  far  in  excess  of 
the  total  expense  of  the  standing  army  of  Germany.  An 
enormous  number  of  Spanish  War  veterans  who  never  even 
left  the  country  are  being  added  to  the  list,  and  their  widows 
will  be  after  them;  the  last  survivor  of  such  may  not  die 
before  A.  D.  2140,  and  the  States  themselves  have  not  lagged 
far  behind,  all  to  the  enormous  corruption  of  our  citizenship; 
indeed,  one  or  two  more  wars  (which  the  very  motive  of  such 
wholesale  pensioning  is  the  more  likely  to  bring  on)  would 
bankrupt  the  nation  more  rapidly  than  even  our  battleships. 
Not  only  that,  but  there  is  a  distinct  tendency  to  make  a 
privileged  class  of  veterans,  and  the  sons  of  veterans — and 
perhaps  we  shall  find  of  the  sons  of  sons  of  veterans — by 
giving  them  preference  in  civic  employment  and  special  edu- 
cation, support,  or  privileges  at  the  State's  expense.  Some- 
times they  get  pedlar's  licenses  for  nothing;  sometimes  they 
are  to  be  preferred  in  all  civic  employment;  sometimes  they 
have  special  schools  or  asylums  as  well  as  soldiers'  homes; 
sometimes  they  are  given  free  text-books  in  the  public  schools. 
The  Confederate  States  have  not  been  behindhand  in  enact- 
ing similar  laws  for  their  own  soldiers,  despite  the  implied 


282  POPULAR  LAW-MAKING 

prohibition  of  the  Fourteenth  Amendment;  but  Southern 
courts  have  held  them  void.  \ 

The  general  right  to  bear  arms  is  frequently  restricted  by 
the  prohibition  of  concealed  weapons,  or  of  the  organization, 
drilling,  and  training  of  armed  companies  not  under  State  or 
Federal  control,  both  of  which  limitations  have  been  held 
constitutional;  and  the  legislation  prohibiting  the  employ- 
ment or  importation  of  private  armed  guards,  such  as  the 
Pinkerton  men,  has  been  already  alluded  to  in  our  chapter 
on  labor  legislation.  The  precedent  for  the  latter  is  to  be 
found  in  the  early  English  legislation  against  retainers; 
that  is  to  say,  the  armed  private  guard,  or  "livery,"  of  the 
great  noblemen;  whence  is  derived  the  custom  of  putting 
servants  in  livery.  The  legislation  against  private  drill  com- 
panies is  closely  allied,  and  had  a  somewhat  amusing  test  in 
Chicago  where,  during  a  labor  strike,  a  number  of  the  strike 
sympathizers  organized  a  so-called  drill  company  and  fur- 
nished themselves  with  guns,  for  the  purpose  really  of  intimi- 
dating the  public  and  helping  the  law-breakers.  Unfortu- 
nately it  so  happened,  for  this  purpose,  that  the  first  time 
they  sallied  forth  with  sword  and  musket  on  warfare  bent, 
they  were  stopped  by  one  or  two  policemen  on  the  nearest 
street  corner,  taken  to  the  station-house,  deprived  of  their 
arms,  and  locked  up  for  the  night.  The  next  morning  a  fine 
was  imposed  upon  their  captain,  who  appealed  to  the  United 
States  Supreme  Court  without  success.1 

The  legislation  for  giving  damages  for  injuries  to  property 
done  by  mobs  was  tested  after  the  Pittsburg  riots  of  1873, 
and  that  yellow  metropolis  was  mulcted  in  heavy  damages, 
which  it  took  twenty-three  years  to  pay  off.  But  no 
damages  in  this  country  were  ever  given  for  criminal  homi- 
cide directly,  although  there  is  an  interesting  case  in  the 
Federal  Circuit  Court  of  a  gentleman  in  Georgia  who  was 
awaited  by  a  party  of  neighboring  gentlemen  with  the  inten- 
tion of  shooting  him  up  when  he  arrived.  One  of  his  friends 

»  Presser  v.  Illinois,  116  U.  S.  252. 


THE  USE  OF  TROOPS  IN  LABOR  TROUBLES  283 

secretly  got  to  the  railway  station  and  sent  a  telegram  to 
his  wife,  shortly  to  become  his  widow,  not  to  come.  The 
Western  Union  Telegraph  Company  delayed  the  message, 
its  operator  being  in  sympathy  with  the  gentlemen  of  the 
neighboring  town,  and  the  widow  failed  to  recover  damages 
from  the  telegraph  company.  But  these  modern  statutes 
in  Ohio  and  the  Southern  States,  making  towns  responsible 
in  a  definite  sum  to  the  kin  of  a  murdered  man,  are  the  exact 
re-enactment  of  the  early  Anglo-Saxon  law;  except  that  the 
blood  damages — the  were  gild — were  in  those  days  put  upon 
the  neighbors  or  the  kin  of  the  enemy. 

"Organized  labor"  is  hostile  to  the  use  of  the  militia, 
still  more  of  the  regular  army,  in  any  labor  dispute  or  riot 
resulting  therefrom.  It  is  never  justifiably  hostile  where 
actual  offences  are  committed,  but  there  is  something  to  be 
said,  at  least  there  is  some  precedent  for  their  hostility,  in 
cases  where  by  the  accident  of  Federal  jurisdiction  the  whole 
power  of  the  United  States  army  is  called  in  to  back  up  the 
injunction  of  a  judge,  perhaps  improperly  issued.  That  is 
to  say,  if  the  parties  to  the  dispute  are  citizens  of  the  same 
State  the  National  government  may  not  interfere  except,  of 
course,  where  the  mails  or  inter-State  commerce  are  ob- 
structed; but,  by  the  mere  accident  that  plaintiff  and  defend- 
ant come  from  different  States — and  this  may  nearly  always 
be  made  the  case  by  the  plaintiff  corporation,  if  it  be  a  citizen 
of  another  State  than  where  it  owns  its  mine  or  operates  its 
mill — it  may  always  pick  out  strike  leaders,  walking  dele- 
gates, who  are  citizens  of  another  State,  so  that  the  litigation 
may  be  brought  in  a  United  States  court.  If,  then,  the  orders 
or  processes  of  that  Federal  court  be  interfered  with,  under 
the  law  of  our  Constitution  the  entire  Federal  government, 
first  the  Federal  marshals  and  then  the  Federal  army,  may 
be  called  into  the  fight. 


CHAPTER  XIV 
OF  POLITICAL  RIGHTS 

Most  important  of  these  are  the  right  to  assemble,  and 
the  right  of  free  election.  The  right  of  political  assembly 
and  petition  is  another  principle  which  has  been  much  broad- 
ened by  American  constitutions.  In  England  the  right  of 
public  meeting  undoubtedly  existed  from  early  times,  but  it 
was  tied  to  the  right  of  petitioning  Parliament,  which  obvi- 
ously limited  its  scope;  and  always  strongly  contested  by 
the  kings.  Many  riot  acts  were  passed,  both  by  the  Tudors 
and  by  the  Stuarts,  which  sought  to  limit  and  restrict  it,  and 
even  to  make  any  meeting  of  more  than  twelve  men  a  riotous 
and  criminal  assembly.  Indeed,  the  history  of  the  attempt 
of  the  authorities  to  prevent  riotous  assemblies  quasi-political 
runs  all  the  way  from  Jack  Cade's  Rebellion  in  1452  to  the 
Philadelphia  street  railway  strike  in  1910.  By  an  Act  of 
1549  unlawful  assemblies  of  twelve  "to  alter  laws  or  abate 
prices"  were  made  unlawful — one  of  the  reasons  that  gave 
rise  to  the  English  notion  that  a  simple  strike  was  criminal. 
This,  however,  has  nothing  to  do  with  the  political  right  of 
assembly  which,  fully  recognized  by  the  Massachusetts  Body 
of  Liberties  in  1641,  was  not  definitely  established  in  Eng- 
land until  the  Bill  of  Rights  of  1689.  Now  this  principle  is 
cardinal,  and  so  far  as  I  know  none  of  the  States  have  legis- 
lated upon  the  subject,  unless  the  limitation  of  the  injunction 
writ  be  such  legislation.  A  statute  of  Henry  VII  gave  special 
authority  to  the  Court  of  Star  Chamber  over  riots;  which  is 
precisely  the  power  now  objected  to  by  labor  leaders  when 
exercised  by  courts  of  chancery.  But  it  must  be  noted  that 

284 


RIGHT  OF  ASSEMBLY  AND  FREE  ELECTIONS    285 

this  right  of  assembly  only  extends  to  matters  political,  and 
does  not  cover  a  meeting  held  for  an  end  ordinarily  unlaw- 
ful, such  as  to  bring  about  a  riot  or  to  work  oppression  to 
others  or  an  injury  to  the  public. 

The  right  of  election,  however,  is  much  older  in  England. 
We  find  statutes  concerning  the  right  of  free  election,  that  is, 
of  allowing  electors  to  vote  without  interference  or  control, 
as  early  as  1275.  It  is  for  this  reason  that  almost  from  the 
origin  of  the  House  of  Commons  it  has  been  unlawful,  or  at 
least  uncustomary,  for  peers  of  the  realm  to  even  speak 
pending  elections  to  the  House  of  Commons.  That  House 
also  vindicated  its  right  to  judge  of  elections  against  Eliza- 
beth, and  the  principle  that  it  alone  shall  be  the  judge  re- 
mains in  full  force  in  the  United  States,  though  in  modern 
times  in  England  given  to  the  courts.  There  is  no  constitu- 
tional principle  in  England  as  to  the  right  of  suffrage,  which 
in  early  times  was  shared  in  by  all  free  men,  or  at  least  land- 
holders. It  was  in  1429  limited  to  the  forty  shillings  free- 
holders, which  law  has  been  relaxed  by  degrees  ever  since. 
Our  early  constitutions  recognized  both  property  and  educa- 
tional limitations;  these  were  all  done  away  with  at  one 
time,  except  in  Massachusetts  and  Rhode  Island,  the  former 
retaining  an  educational,  the  latter  a  property,  qualification. 
They  have  now  been  abolished  in  those  States,  but  taken  up 
in  the  South,  for  the  purpose,  of  course,  of  disfranchising  the 
negro  vote. 

The  serious  modern  instance  of  interference  with  free 
election  is  that  of  the  Federal  government  with  State  elec- 
tions in  the  South  during  the  thirty  years  following  the  war. 
While  such  interference  was  never  quite  held  unconstitu- 
tional, it  was  strongly  felt  to  be  so;  and  has  therefore  disap- 
peared from  practical  politics.  The  principle  of  free  elec- 
tion, therefore,  remains  again  unquestioned,  and  is,  indeed, 
strengthened  by  considerable  legislation  aimed  at  the  influ- 
encing of  votes  by  employers,  etc.  Many  States,  for  instance, 
require  that  Election  Day  shall  be  a  holiday,  or,  at  least,  that 


286      .  POPULAR  LAW-MAKING 

all  employers  of  labor  shall  give  part  of  the  day,  one  or  two 
hours  at  least,  for  the  employees  to  vote;  and  a  number  of 
States  have  statutes  aimed  at  the  coercion  of  their  vote  by 
any  promise  of  giving  or  withholding  employment,  or  other- 
wise, and  the  giving  their  pay  to  them  in  envelopes  upon 
which  any  political  matter  is  printed.  Bribery  is  nearly 
always  made  criminal  and  cause  of  permanent  disfranchise- 
ment  and  disability  to  hold  office,  both  to  the  person  giving 
or  receiving  the  bribe,  but  there  is  more  interesting  legisla- 
tion still  aimed  at  any  form  of  political  corruption.  Massa- 
chusetts led  the  way  with  a  statute  which  endeavors  to  make 
criminal  any  promise  of  employment  or  advantage,  or  even 
for  a  corporation,  at  least,  to  employ  any  person  at  the  rec- 
ommendation of  any  member  of  the  legislature.  It  is  very 
difficult  to  draw  such  laws  to  make  them  apply  fairly,  but 
they  have  been  copied  with  even  greater  elaboration  in  many 
Southern  States.  The  statute  of  Alabama,  for  instance, 
covers  nearly  a  page  in  describing  the  various  acts  or  promises 
which  are  thus  forbidden  to  officers  or  candidates  for  office. 
Then  there  is  the  long  range  of  lobby  acts  aimed  at  the 
very  serious  abuse  of  lobbying.  Massachusetts  divides  the 
offence,  or  rather  the  business,  into  two  general  classes: 
First,  the  legislative  counsel  who  appears  before  legislative 
committees  in  support  or  in  opposition  of  measures.  This 
practice,  of  course,  is  perfectly  legitimate  in  many  cases,  but 
the  law  provides  that  his  advocacy  must  be  open,  he  must 
disclose  the  client  for  whom  he  appears,  if  there  be  one,  and 
at  the  end  of  his  services  file  a  statement  of  the  counsel 
fees  actually  received.  Such  legislation,  however,  is  easily 
evaded  by  the  payment  of  an  annual  salary.  Then  there  is 
the  legislative  agent  or  lobbyist,  properly  so  called,  who  does 
not  openly  appear  before  legislative  committees,  but  way- 
lays members  of  the  legislature  at  their  dwelling  or  meeting 
places,  or  elsewhere.  He  must  also  register  as  legislative 
agent  by  the  Massachusetts  law,  and  file  an  actual  account 
of  his  receipts  and  expenses.  Such  legislation  properly  ob- 


LOBBY  AND  CORRUPT  PRACTICES  ACTS*       287 

served  would,  of  course,  have  made  impossible  the  celebrated 
"House  of  Mirth '  at  Albany.  Then  there  are  many  statutes 
against  intimidation  in  elections,  particularly  in  the  South; 
and  there  were  many  acts  of  Congress  passed  under  the 
Fourteenth  Amendment,  but  these  have  practically  all  been 
held  unconstitutional. 

The  form  of  the  ballot  is  another  matter  that  has  been 
the  subject  of  much  legislation.  Our  States  vary,  as  does 
still  public  opinion  in  England,  between  the  extreme  of  pro- 
viding by  the  Constitution  itself  for  the  secrecy  of  the  ballot, 
and  the  other  extreme  of  requiring  that  all  voting  should  be 
viva  voce,  as  was  formerly  the  case  at  least  in  Kentucky. 
Public  opinion  has  universally  settled  in  favor  of  the  former; 
and  to  protect  the  voter's  freedom,  the  so-called  Australian 
ballot  has  very  generally  been  adopted,  the  principle,  of 
course,  being  a  ballot  on  which  all  candidates'  names  are 
printed,  with  or  without  party  designations,  and  against 
which  the  voter  makes  his  mark.  In  their  practical  work- 
ing, however,  these  laws  depend  on  the  simplicity  of  the  form ; 
thus,  it  works  very  well  in  Massachusetts,  where  the  form 
is  simple  and  the  ballot  short,  and  very  badly  in  New  York, 
where  the  contrary  is  the  case.  Opinion  is  pretty  well 
united  on  the  advisability  of  the  Australian  ballot,  the  only 
remaining  difference  being  as  to  whether  any  party  designa- 
tions should  be  printed.  Most  practical  politicians  desire 
that  the  name  "Republican"  or  "Democrat,"  or  even  that 
some  party  symbol  like  a  star  or  flag,  should  be  affixed, 
which  can  be  understood  by  the  most  illiterate  voter;  also, 
that  the  voter  should  be  allowed  to  make  one  cross  opposite 
the  word  "Republican"  or  "Democrat"  when  he  means  to 
vote  the  whole  of  the  ticket,  "in  order  to  give  each  candidate 
the  benefit  of  the  full  party  strength."  On  the  other  side  it  is 
argued  that  all  voting  should  be  intelligent  and  never  blind, 
and  that  if  the  voter  does  not  take  the  trouble  to  mark  all 
the  names  on  the  ballot  it  sufficiently  indicates  that  he  is 
indifferent  as  to  some  of  the  candidates  even  of  his  own 


288  POPULAR  LAW-MAKING 

party,  and  that  his  votes  for  them  should,  therefore,  not  be 
counted. 

The  most  significant  of  modern  developments  in  legisla- 
tion concerning  voting  is  the  new  practice  of  recognizing  by 
law  political  parties,  and  of  regulating  by  law  the  mode  of 
their  nominations.  The  old  idea  was  that  the  law  took  no 
notice  of  anything  that  happened  until  election  day,  when 
it  did  regulate  the  mode  of  voting  and  counting  the  votes; 
the  law  was  supposed  to  be  blind  to  political  parties;  the 
persons  elected  were  merely  the  successful  candidates.  But 
first  began  the  tendency  to  recognize  parties  in  "bi-parti- 
san"  boards  and  commissions;  it  became  very  usual  to 
provide  that  State  officials  should,  when  the  office  was  held, 
or  the  function  performed,  by  more  than  one  person,  be 
elected  or  appointed  from  different  parties.  This,  of  course, 
works  very  well  when  there  are  but  two  parties,  as  indeed  is 
usually  the  case.  And  now  of  late  years  the  practice  has 
grown  up  of  regulating  political  matters  before  the  election 
day.  Direct  primaries,  caucuses  regulated  by  law,  the  mode 
of  nomination,  nomination  papers  to  be  filed  in  a  certain 
manner,  the  compulsory  service  of  men  as  candidates  unless 
they  comply  with  precise  formalities  of  resignation,  the  joint 
caucus  and  the  separate  caucus,  the  public  nomination  paper, 
the  one-per-cent,  three-per-cent.  or  five-per-cent.  rule  where- 
by a  party  gains  such  official  recognition  only  by  throwing 
such  a  percentage  of  votes  at  some  previous  election — in 
short,  all  the  mass  of  legislation  of  this  kind  is  the  matter  of 
the  last  few  years.  In  the  writer's  opinion,  with  the  possi- 
ble exception  of  the  public  nomination  paper,  it  is  all  mis- 
taken. Aimed  at  destroying  the  machine,  it  really  intrenches 
the  machine — the  professional  politician — in  power.  The 
general  public  will  not,  and  should  not  be  compelled  to  do 
more  work  than  is  necessary.  If  they  actually  vote  at 
election  it  is  all  that  can  fairly  be  asked  of  them  and  more 
than  one-third  of  them  do.  They  will  not,  and  cannot,  de- 
vote their  time  to  politics  all  through  the  year.  The  result 


DIRECT  PRIMARIES  AND  NOMINATIONS         289 

is  that  all  such  elaborate  schemes  simply  throw  the  game 
into  the  hands  of  the  "town  committee"  or  other  permanent 
professional  body.  If  you  have  to  hold  a  meeting  in  June, 
and  give  notice  of  a  caucus  in  July,  with  as  much  formality 
as  used  to  be  required  in  publishing  the  bans  of  marriage,  and 
then  on  a  certain  day  in  August  do  something  else,  and  in 
September  something  still  more,  and  file  with  the  Secretary 
of  State  nomination  papers  in  October,  and  have  everything 
complete  ten  days  before  election  day, — the  ordinary  citizens 
who  usually  awake  to  the  fact  that  there  is  an  election  about 
that  time  find  it  too  late  to  have  any  voice  in  the  nomination. 
They  go  to  the  election  itself  to  find  an  official  ballot  with 
two  machine  candidates  for  each  office,  and  no  hope  of  elect- 
ing, even  were  it  possible  to  nominate,  a  third.  In  the  old 
days,  when  they  discovered  that  an  improper  candidate  had 
been  nominated,  on  the  very  eve  of  election  they  could  arouse 
themselves  and  defeat  him;  under  all  these  complicated  sys- 
tems it  is  too  late.  One  necessity  for  such  legislation,  how- 
ever, arises  from  the  Australian  ballot  itself;  when  that  bal- 
lot carries  party  designations,  who  is  to  determine  who  is  the 
official  party  candidate?  This  problem  is  not,  however, 
insoluble.  Indeed,  it  might  be  argued  that  it  would  be  an 
excellent  test  to  require  the  various  so-called  party  nominees 
to  run  together,  leaving  to  the  voter  to  determine  who  was 
the  regular  one.  Certainly  the  legalizing  of  conventions, 
caucuses,  and  other  nominating  machinery,  has  led  to  great 
scandals.  Under  such  laws,  whoever  first  gets  possession  of 
the  hall  at  the  time  named  would  seem  to  be  the  regular  can- 
didate. We  have,  therefore,  in  Massachusetts,  seen  the 
scandal  of  two  groups  of  men  making  different  nominations 
in  a  loud  voice  at  the  same  time,  one  at  the  front  of  the  hall, 
and  the  other  at  the  back,  and  the  courts  had  to  decide  who 
was  the  regular  nominee.  In  the  opinion  of  most  lawyers, 
they  decided  in  favor  of  those  who  ought  to  have  been  the 
nominees  rather  than  of  those  who  in  fact  were. 

In  the  opinion  of  many  "practical  politicians,"  as  well  as 


290  POPULAR  LAW-MAKING 

others,  the  whole  mass  of  legislation  that  recognizes  political 
parties  and  applies  to  anything  happening  up  to  the  date  of 
election,  should  be  expunged  from  the  statutes.  I  would 
hardly  make  an  exception  even  of  the  "bi-partisan"  board. 
A  board  should  be  composed  of  the  best  persons,  not  neces- 
sarily party-colored;  if  there  be  any  force  in  the  argument 
for  bi-partisan  commissions,  it  should  apply  ten  times  as 
much  to  the  judges,  but  there  is  no  provision  in  any  State  of 
the  Union  or  in  "the  National  government  for  bi-partisan 
courts  of  law.  Massachusetts,  alone,  so  far  as  the  writer  is 
informed,  of  all  the  States,  by  a  certain  tradition  respects 
this  principle.  Very  few  Massachusetts  governors  replace  a 
Democratic  judge  by  a  Republican,  or  vice  versa. 

But  most  significant  of  all  political  matters  is  the  growing 
distrust  of  legislatures.  Curiously  enough,  although  there 
was  a  great  distrust  of  the  executive  of  the  nation  until 
within  a  very  few  years,  that  seems  to  have  entirely  passed 
away.  Governors  of  States  have  too  little  power  to  inspire 
distrust  in  anybody.  But  that  legislatures  or  representa- 
tives of  the  people  should  fail  to  inspire  their  confidence  is 
one  of  the  most  curious  developments  of  modern  politics. 
The  matter  has  been  fully  discussed  elsewhere  in  this  book. 
It  is  greatly  to  be  lamented,  for  it  tends  to  lower  the  character 
of  the  legislatures  themselves.  The  days  are  indeed  far  off 
when  a  man  would  prefer  being  governor  of  a  State  to  presi- 
dent, ambassador,  or  judge  of  the  Supreme  Court;  or  the 
State  Senate  to  the  national  Congress.  Part  of  this  indif- 
ference is,  of  course,  explicable;  for  with  the  perfection  of 
our  civilization  and  the  growing  intelligence  that  most 
statutes  have  been  enacted  that  are  really  needful,  there  is 
really  less  for  the  legislatures  to  do.  Then,  also,  the  grow- 
ing practice  of  giving  a  large  share  of  governmental,  or  even 
legislative,  powers  to  boards  and  commissions  has  narrowed 
the  scope  of  legislation.  Whatever  be  the  reason  the  fact  is 
certain.  Very  few  States  now  allow  their  legislatures  to  sit 
ad  libitum,  and  only  six  or  seven  States  permit  annual  ses- 


DISTRUST    OF    REPRESENTATIVE    GOVERNMENT  291 

sions.  In  nearly  all  States  sessions  are  biennial,  if  not,  as  in 
some  Southern  States,  quadrennial.  That  is  to  say,  the 
legislature  is  only  allowed  to  meet  once  in  four  years;  and  in 
more  than  half  the  States  the  time  of  the  session  is  limited 
to  ninety,  sixty,  or  even  thirty  days,  or  the  pay  of  the  legisla- 
tors cut  off  at  the  end  of  such  period. 

A  few  States  have  laws  aimed  at  corrupt  elections,  that  is 
to  say,  limiting  the  expenditure  of  candidates  and  requiring 
publicity.  Most  States  now  forbid  contributions  by  corpo- 
rations, as  does  the  Federal  government.1  Thus,  by  the 
California  law  of  1893,  expenditures  are  limited  to  one  hun- 
dred dollars  for  each  candidate,  or  one  thousand  dollars  by 
a  committee,  and  in  no  case  exceeding  five  per  cent,  of  the 
salary  of  the  office  for  which  the  person  is  a  candidate  for 
one  year,  and  the  legitimate  expenses  are  specified;  that  is  to 
say,  public  meetings,  printing,  postage,  and  head-quarters 
expenses.  Probably  no  one  regrets  the  prevalence  of  ex- 
travagant expenditures  more  than  persons  who  are  them- 
selves in  public  life.  If  the  bosses  of  many  State  machines 
were  consulted  in  private,  they  would  agree  that  the  only 
really  legitimate  expenditures  are  the  hiring  of  halls,  and 
the  mailing  of  at  most  one  printed  circular  to  every  voter  in 
the  district.  The  Missouri  law  of  the  same  year  fixes  a  limit 
of  expenditure  of  one  dollar  per  hundred  of  votes  thrown  at 
the  last  election  for  the  office  for  which  the  person  is  a  can- 
didate, which,  in  an  ordinary  congressional  district  of  say 
fifteen  thousand  voters,  would  be  one  hundred  and  fifty 
dollars — certainly  little  enough.  Voters  very  generally  have 
to  be  registered. 

As  is  familiar  to  the  reader,  there  has  been  a  decided 
movement  for  the  direct  election  by  the  people  of  United 
States  senators,  a  large  majority  of  the  States,  and  the 
Democratic  party  in  all  States,  having  in  the  last  few  years 
expressed  themselves  in  favor  of  a  change  in  that  particular. 
Until  within  a  few  years  it  was  thought  only  possible  by  Con- 
1  Bill  signed  by  President  Taft,  June,  1910. 


292  POPULAR  LAW-MAKING 

stitutional  amendment,  but  the  example  of  Oregon  and  other 
States  has  shown  that  it  may  be  done  by  means  of  a  law  pro- 
viding for  the  expression  of  the  preference  of  the  voters,  and 
this  may  even  be  made  a  party  ballot.  That  is  to  say,  voters 
at  party  caucuses,  or  even  at  elections  where  the  ballots  are 
so  marked,  may  express  their  preference  for  this  or  that 
candidate  for  the  United  States  Senate,  and  the  moral  obli- 
gation will  then  be  on  the  State  legislature,  or  at  least  on 
its  members  of  the  corresponding  party,  to  vote  for  the  candi- 
date so  nominated.  This  has  been  universally  done  in  the 
case  of  election  of  the  United  States  President  by  the  force 
of  public  opinion;  no  instance  is  on  record  of  an  elector 
having  voted  differently,  or  of  a  bribe  or  even  of  an  attempt 
to  bribe.  But  with  legislation — statute  law  not  being  so 
strong  as  the  unwritten  law,  contrary  to  the  popular  opinion 
— it  is  by  no  means  certain  that  this  result  will  happen.  The 
law  has  worked  in  Oregon,  where  first  adopted,  with  the 
striking  result  that  a  Republican  legislature  elected  a  Demo- 
cratic United  States  senator;  but  if  the  writer  is  correctly 
informed,  the  contrary  has  been  the  case  in  Illinois.  The 
movement  for  the  direct  nomination  of  members  of  the 
lower  house  of  Congress  also  exists  in  many  States.  "Di- 
rect nomination"  of  course  means  a  nomination  by  the 
mass  of  voters,  either  in  assembly  or  by  a  written  list.  The 
value  of  this  reform  is  probably  exaggerated.  Direct  nomi- 
nations in  the  city  of  Boston  recently  had  the  somewhat 
amusing  result  that  there  were  two  or  three  times  as  many 
names  on  the  nominating  petitions  as  voted  in  the  election, 
and  that  one  gentleman,  indeed,  fell  short  of  his  nominating 
petition  by  nearly  ninety  per  cent. 

The  mode  of  legislation  is  not  much  changed  from  the 
early  days.  Usually  bills  have  in  theory  to  be  read  three 
times  and  must  be  voted  for  by  a  majority  of  a  quorum. 
Many  States  forbid  new  legislation  to  be  attempted  after 
the  first  few  days  of  the  session.  There  has  in  the  last  few 
years  been  an  effort  at  the  proper  drafting  of  bills,  but  it 


WOMEN'S  SUFFRAGE  293 

has  hardly  made  much  progress  as  yet,  and  will  be  discussed 
in  our  final  chapter. 

The  two  most  radical  changes  of  all  are,  of  course,  the 
initiative  and  referendum,  and  women's  suffrage.  The  lat- 
ter has,  on  the  whole,  made  no  progress  since  it  was  adopted 
in  Colorado  and  three  other  States,  about  the  year  1890.  The 
people  of  the  States  where  it  exists  appear  satisfied  and  it  is 
probable  that  they  will  never  make  the  change  back;  on  the 
other  hand,  the  better  opinion  seems  to  be  that  the  existence 
of  women's  suffrage  has  not  materially  altered  conditions  or 
results  in  any  particular,  except,  possibly,  that  there  is  a  little 
less  disorder  around  the  polling  booths  on  election  day. 
The  largest  city  in  the  world  where  women  vote  is  Denver; 
and  in  hardly  any  American  town  has  the  "social  evil"  been 
more  openly  prevalent  or  politics  more  corrupt;  while  it  has 
just  voted  against  prohibition.  As  in  the  case  of  school  suf- 
frage, it  is  probable  that  a  smaller  proportion  of  women  are 
now  exercising  the  right  of  suffrage  than  when  the  thing  was 
a  novelty.  In  all  the  neighboring  States  to  the  four  women's 
suffrage  States  (Colorado,  Wyoming,  Idaho,  and  Utah)  a 
women's  suffrage  amendment  has  been  proposed  to  the  Con- 
stitution, all  the  male  voters  have  been  given  a  chance  to  vote 
on  the  question,  and  in  every  instance  it  has  been  defeated 
by  very  large  majorities.  As  has  been  intimated,  the  move- 
ment to  extend  the  right  of  suffrage  to  women  for  all  matters 
connected  with  schools  and  education  has  also  been  arrested. 
Many  States  had  adopted  this  principle  before  the  year  1895, 
but  few,  if  any,  during  the  past  fifteen  years.  The  experience 
of  Massachusetts,  where  sentiment  was  strongly  for  it,  shows 
that  the  women  take  very  little  interest  in  the  matter;  an 
infinitesimal  percentage  of  the  total  female  population  voting 
upon  election  day,  even  when  a  prominent  woman  was  the 
leading  candidate  for  the  school  committee. 

Women's  suffrage  was  adopted  in  Colorado  in  1895,  and 
rejected  in  Kansas  the  same  year;  adopted  in  Idaho  in  1896, 
and  rejected  in  California;  rejected  in  Washington  and 


294  POPULAR  LAW-MAKING 

South  Dakota  in  1898;  rejected  in  Oregon  in  1900,  in 
both  Washington  and  Oregon,  once  at  least  since,  and 
has  been  rejected  by  popular  referendum  in  several  other 
States. 

There  is,  however,  an  intelligent  tendency,  notably  in  the 
South,  to  recognize  the  right  of  women  to  vote  as  property 
owners  upon  matters  involving  the  levying  of  taxes,  or  the 
"bonding"  of  cities,  towns,  or  counties,  for  public  improve- 
ments or  other  purposes.  Such  laws  exist  in  Texas,  Louisi- 
ana, Michigan,  and  possibly  other  States,  and  in  Louisiana 
the  statute  provides  machinery  by  which  women  may  on 
such  matters  vote  by  mail.  It  is  much  to  be  wished  that 
municipal  affairs  and  municipal  elections  could  be  separated 
entirely  from  political  ones.  That  is  to  say,  that  a  city  or 
town  might  be  run  as  a  business  corporation  on  its  business 
side,  and  in  such  elections  have  the  property  owners,  both 
men  and  women,  only  vote.  The  trouble,  of  course,  is  that 
there  are  certain  matters,  notably  the  expenditure  for  schools, 
which  is  the  largest,  at  least  in  Massachusetts  cities  and 
towns,  which  are  in  a  sense  both  municipal  and  political, 
both  economic  and  affecting  individual  rights  of  persons  not 
property  owners.  In  any  case,  the  matter  must  be  consid- 
ered outside  of  the  sphere  of  "practical  politics."  It  is 
hardly  likely  that,  except  for  some  special  matter  like  the 
race  question  in  the  South,  a  State  constitution  will  ever  be 
amended  in  a  conservative  direction.  Allied  with  this  would 
be  a  proposition  to  deprive  persons  in  receipt  of  wages  or 
salary  from  a  city  of  the  vote  at  municipal  elections.  La- 
borers and  employees  in  the  employ  of  a  large  city  like  Bos- 
ton already  form  a  very  considerable  percentage  of  the 
voters,  and  if  you  add  to  them  the  employees  on  the  public- 
service  corporations,  partly  under  municipal  control,  you 
have  probably  got  nearly  one-third  of  the  total  vote.  Yet 
the  vote  could  not  be  taken  from  them  without  an  amend- 
ment to  the  State  constitution. 

Of  the  initiative  and  referendum  much  has  been  written. 


DIRECT  ELECTION  OF  U.  S.  SENATORS         295 

It  exists  in  full  force,  that  is  to  say,  as  applying  both  to  State 
elections  and  to  county,  city,  or  town  elections,  in  several 
States,  mostly  in  the  far  West;  and  for  partial  purposes  it 
exists  in  several  more.  "Direct  legislation"  has  been  very 
popular  as  a  political  slogan  during  the  past  few  years,  but 
it  has  not  been  adopted  as  yet  in  any  of  the  thirteen  origi- 
nal States.  The  objections  to  it  are  fundamentally  that  it 
destroys  the  principle  of  representative  government;  that  it 
takes  responsibility  from  the  legislature  with  the  result, 
probably,  of  getting  a  more  and  more  inferior  type  of  man  as 
State  representative;  that  it  is  unnecessary,  inasmuch  as  any 
one  may  have  any  bill  introduced  in  the  legislature  to-day, 
and  public  sentiment  be  effectual  to  prevent  the  bill  from 
being  defeated;  and  finally,  the  objection  of  inconvenience, 
that  it  is  cumbrous  and  unmanageable  to  work.  Already 
the  Secretary  of  State  of  Oregon  complains  that  the  laws 
passed  by  initiative  are  so  badly  written  as  to  be  unintelli- 
gible and  conflicting,  to  say  nothing  of  bad  spelling  and 
grammar.  In  one  instance,  at  least,  an  important  statute, 
that  for  the  initiative  and  referendum  itself,  adopted  by 
initiative,  failed  of  effect  because  it  contained  no  clause 
beginning  "Be  it  enacted,"  etc.  Possibly  with  practice  these 
objections  might  disappear.  The  more  valuable  part  of  the 
reform  is  undoubtedly  the  referendum.  The  initiative  is 
hardly  necessary,  except  by  way  of  giving  a  referendum  on 
measures  which  otherwise  would  not  emerge  from  the  legis- 
lature; and  there  is  a  growing  inclination  to  give  a  refer- 
endum on  all  laws  or  measures  involving  a  grant  of  a  fran- 
chise or  of  a  right  or  privilege  at  the  expense  of  the  general 
public,  or  the  town  or  city  concerned.  This  is  a  very  dis- 
tinct tendency,  and  throughout  the  Union  the  States  are 
rapidly  passing  laws  that  where  a  State-wide  franchise  is 
given,  an  exemption  from  taxes,  a  rate-making  power,  or 
other  privilege,  it  shall  be  submitted  to  all  the  voters,  and 
corresponding  measures,  street-railway  franchises,  gas,  light, 
water,  or  other  public-service  corporations,  acting  only  in 


29G  POPULAR  LAW-MAKING 

definite  localities,  cities  or  towns,  shall  be  referred  in  the 
appropriate  locality. 

The  method  of  the  State-wide  initiative  or  referendum 
varies  little  in  the  different  States;  usually,  upon  petition  of 
from  five  to  eight  per  cent,  of  the  voters,  or  in  cities  and 
towns  usually  fifteen  per  cent.,  legislation  may  be  initiated. 
It  may  then  be  either  passed  by  the  State  legislature  like  an 
ordinary  law,  or  be  given  to  the  referendum  of  the  people, 
or  both,  and  takes  effect  when  adopted  by  a  majority  of  the 
voters  at  a  general  or  special  election.  Constitutional  amend- 
ments may  in  some  States  be  originated  and  adopted  in  the 
same  manner.  So  far  as  one  can  judge,  the  referendum  in 
this  country  shows  the  same  tendency  that  it  has  shown  in 
Switzerland.  Although  a  larger  number  of  measures  are 
doubtless  submitted  to  the  people,  and  especially  measures 
of  a  class  not  to  go  through  the  ordinary  legislature,  when 
controlled  by  important  interests,  yet  the  vote  itself  at  the 
final  election  is  apt  to  be  somewhat  conservative.  The 
referendums  upon  women's  suffrage,  for  instance,  while  the 
initiative  was  adopted  by  a  large  majority,  were  very  deci- 
sively defeated  at  the  polls,  and  it  is  said  that  last  year's 
election  in  Oregon  and  Washington,  with  very  numerous  and 
complex  referendum  measures,  showed  a  surprising  degree 
of  intelligence  on  the  part  of  the  ordinary  voter.  Neverthe- 
less, while  it  may  be  possible  to  submit  to  him  one  or  two 
measures  a  year,  if  it  were  to  come  to  the  submission  of  all 
legislation  (and  the  States  will  average  from  five  hundred  to 
one  thousand  statutes  per  year,  at  their  present  output)  it 
seems  incredible  that  the  voter  should  have  time  and  intelli- 
gence, or  even  take  the  trouble,  to  mark  his  ballot  accord- 
ingly; while  it  is  obvious  that  the  ballot  itself,  setting  forth 
the  full  law,  would  be  considerably  larger  than  the  annual 
volumes  of  statutes  now  are.  This  matter  of  practical  con- 
venience, however,  may  perhaps  be  expected  to  cure  itself. 
I  should  conclude,  therefore,  that  while  the  whole  matter  is 
an  interesting  experiment,  the  initiative  is  hardly  necessary, 


THE   INITIATIVE,  REFERENDUM,   AND  RECALL     297 

and  the  referendum  should  be  limited  to  constitutional  amend- 
ments (where  it  was  always  allowed)  and  to  matters  of  defi- 
nite local  or  public  interest,  like  the  granting  of  a  franchise 
or  an  irrepealable  contract  of  privilege. 

The  modern  practice  of  putting  everything  into  the  State 
constitution  which  we  have  called  attention  to  in  other 
places,  has  led,  of  course,  to  a  practical  referendum  on  all 
most  important  matters,  for  no  constitution,  with  the  excep- 
tion of  that  of  Virginia,  has  ever  been  adopted  in  any  of  our 
States  except  by  the  people  at  an  election ;  and  with  the  ten- 
dency to  require  the  submission  of  a  new  constitution  every 
twenty  years,  and  to  make  the  constitution  itself  so  com- 
pendious as  to  cover  a  vast  amount  of  matter,  usually  sub- 
jects of  legislation,  with  the  consequent  necessity  of  frequent 
amendment,  we  have  now  in  our  Southern  States  and  some 
of  the  Western  States  a  practical  referendum  to  the  people 
of  most  important  legislative  matters  every  few  years. 

The  initiative  and  referendum  was  adopted  in  Iowa  in 
1891.  As  to  bonds  and  debts  of  cities,  etc.,  in  Ohio  in  1902. 
In  Oregon,  the  general  initiative  and  referendum  by  consti- 
tutional amendment  in  1903.  As  to  franchises  for  public 
utilities  only,  in  Wisconsin,  Montana,  and  Arizona  the  same 
year.  As  to  Chicago,  Illinois,  in  1904,  and  in  several  States, 
what  we  will  term  the  local  or  limited  referendum,  in  the  last 
four  or  five  years.  It  was,  however,  defeated  in  Massachu- 
setts, although  adopted  in  Maine;  and  in  Delaware  the 
whole  question  was  submitted  to  a  commission  to  investigate. 

The  recall,  a  still  more  recent  device  than  the  initiative 
and  referendum,  has,  indeed,  no  precedent  in  the  past,  or  in 
other  countries.  In  substance,  it  makes  the  tenure  of  office 
of  an  elective  official  dependent  on  the  continuous  good-will 
of  the  voters,  or  of  a  certain  proportion  of  the  voters.  Under 
the  present  charter  of  the  city  of  Boston,  the  mayor  may  be 
"recalled"  upon  petition  of  fifty  per  cent,  of  the  registered 
voters — a  proportion  which  practically  makes  the  recall  im- 
possible. Where,  however,  the  initiative  of  the  recall  depends 


298  POPULAR  LAW-MAKING 

on  a  small  proportion  and  the  result  is  determined  by  a  sim- 
ple majority  vote  at  the  polls,  it  is  easy  to  see  that  the  mayor 
or  other  official  would  be  in  continuous  apprehension,  if  he 
cared  for  his  office,  and  in  any  event  would  not  be  able  to 
adopt  and  follow  out  any  continuous  policy.  The  terms  of 
most  of  our  officials  are  brief.  A  proposal  to  apply  the 
"recall"  to  judges  would,  in  the  opinion  of  the  writer,  be 
wicked,  if  not  unconstitutional;  as  to  all  other  officials,  it 
would  tend  to  destroy  their  efficiency,  and  in  most  cases  be 
in  itself  ridiculous,  at  least  as  to  short-term  officers  holding 
for  only  one  or  two  years. 

One  of  the  most  noteworthy  of  political  changes  that  have 
urred  in  the  republic  since  the  adoption  of  the  Constitu- 
tion in  1789,  is  that  affecting  the  election  and  tenure  of  office 
of  judges.  Smith,  in  his  book  on  American  State  Constitu- 
tions, published  shortly  after  the  Revolution,  tells  us  that  at 
that  time  every  State  in  the  Union  had  its  judges  appointed 
by  the  executive  for  a  life  term.  To-day,  this  principle  sur- 
vives only  in  the  Federal  courts  and  four  States,  New  Hamp- 
shire, Massachusetts,  Maine,  and  Delaware,  although  in 
Connecticut?  New  Jersey,  and  Mississippi,  the  judges  of  the 
highest,  or  Supreme  Court,  are  still  appointed  in  this  manner 
and  f&r  life.  In  Vermont,  Rhode  Island,  Virginia,  and  South 
Carolina,  Supreme  Court  judges  are  elected  by  the  two  houses 
of  the  legislature  in  joint  convention,  but  in  all  other  States, 
that  is,  universally  in  the  West  and  Southwest,  the  judges 
are  elected  by  the  people  of  the  States  or  of  their  respective 
districts.  New  York  and  Pennsylvania,  however,  have  very 
long  terms,  which  by  some  is  said  to  combine  the  advantages 
of  both  systems;  in  other  States  the  term  is  from  four  to  six 
years. 

In  matters  judicial  the  field  is  far  too  vast  to  permit  more 
than  briefest  mention  of  the  most  important  lines  of  popular 
legislation.  In  the  first  place,  common  law  and  chancery 
jurisdiction  are  very  generally  fused  and  confounded.  A 
few  States  still  have  chancellors  entirely  distinct  from  the 


THE  JUDICIAL  SYSTEM  299 

common-law  judges,  and  Massachusetts  and  a  few  other 
States  still  keep  chancery  terms  and  chancery  procedure 
distinct  from  the  common  law.  It  is  certainly  a  curious 
result  that  the  historic  jealousy  of  chancery  and  all  its  works 
should  have  ended,  in  the  most  radical  States  of  the  Union, 
in  their  complete  adoption  of  the  whole  system  of  chancery 
with  all  its  concomitants.  As  a  result,  the  injunction  writ, 
originally  the  high  prerogative  of  the  crown  and  its  highest 
officers,  has  now  become  the  weapon  of  all  judges,  even  in 
some  States  of  inferior  magistrates,  and  has  been  used  with 
a  confusion  and  recklessness  that  have  gone  far  to  justify  the 
complaint  of  labor  interests. 

On  the  other  hand,  we  have  grown  less  jealous  of  pre- 
serving our  common-law  jury  rights.  Not  only  is  much 
more  provision  made  for  the  waiver  of  jury  trial  in  all  States, 
at  least  in  criminal  cases,  and  for  a  trial  by  the  court  without 
a  jury  unless  it  be  specially  claimed,  but  there  is  a  distinct 
tendency  to  have  juries  less  than  twelve  in  number,  and  ver- 
dicts not  unanimous,  but  made  up  of  three-fourths,  two- 
thirds,  or  even  a  simple  majority;  while  our  indifference  to 
common-law  rights  shown  in  our  multiplication  of  boards  and 
commissioners  has  already  been  commented  on. 

Legislation  on  the  law  of  evidence  has  been  on  two  main 
lines,  originally,  of  course,  under  the  Federal  Constitution, 
to  destroy  all  religious  tests,  and  permit  an  atheist  or  per- 
son of  heathen  religion  to  testify  upon  simple  affirmation, 
or  according  to  his  religious  tenets.  Universally,  persons 
charged  with  crime  have  been  permitted  to  testify  in  their 
own  defence,  with  the  common  provision  that  no  inference 
shall  be  drawn  from  their  not  doing  so.  Of  course,  by  our 
Constitution  itself,  they  were  given  the  right  to  counsel  and 
x  compulsory  process  for  obtaining  evidence  on  their  own 
behalf,  neither  of  which  rights  existed  under  the  old  common 
law;  and  then  almost  universally  the  wife  is  permitted  to 
testify  against  the  husband  or  in  his  behalf,  especially  in 
cases  involving  controversy  between  them;  while,  as  she  is 


300  POPULAR  LAW-MAKING 

very  generally  given  the  right  to  make  contracts  even  with 
the  husband,  she  is  naturally  given  the  right  to  enforce  the 
same  in  civil  courts  as  well. 

It  is  in  procedure  that  our  legislation  is  least  efficient. 
Having  little  knowledge  of  the  subject,  legislatures  have 
been  shy  of  meddling  with  court  rules  and  processes;  while 
the  very  fact  that  the  legislatures  have  taken  unto  them- 
selves the  right  so  to  interfere,  has  seemed  to  impress  both 
bench  and  bar  with  a  certain  sense  of  irresponsibility.  I 
fear  we  must  admit  that  the  judges  of  England,  aided  by  its 
bar,  have  been  far  more  solicitous  of  speedy  and  simple 
procedure  and  trial  than  have  the  courts  of  this  country. 
Some  Western  States  have  crudely  tried  to  meet  the  diffi- 
culty, as  by  providing  that  all  judges  must  render  an  opinion 
within  sixty  days,  or  other  brief  period,  after  a  case  is  argued 
before  them,  or  even  by  limiting  the  number  of  witnesses  to 
be  called !  But  it  may  be  feared  that  so  long  as  public  senti- 
ment rather  demands  every  possibility  of  evasion  of  execution 
than  that  a  guilty  person  should  be  promptly  and  summarily 
punished,  little  can  be  hoped  for  from  the  legislatures.  Such 
progress  as  has  been  made  in  this  direction  has  universally 
been  under  the  urgent  instance  of  the  lawyers  themselves,  act- 
ing through  the  State  or  Federal  bar  associations.  But  the 
judges  themselves  must  venture  a  stricter  control  of  irrel- 
evant testimony. 


XV 

OTHER  LEGISLATION  AFFECTING  INDIVIDUAL 
RIGHTS 

Legislation  concerning  freedom  of  speech  and  its  limita- 
tions, the  law  of  slander  and  libel,  hardly  exists  in  America, 
except  only  the  efforts  of  newspapers  to  be  free  of  the  con- 
sequences of  libels  published  by  them,  provided  they  publish 
a  retractation;  and  the  efforts  of  the  people  to  protect  their 
reputation  and  right  to  privacy,  as  by  laws  like  that  of  the 
State  of  Pennsylvania  prohibiting  ridiculous  or  defamatory 
cartoons,  even  of  persons  in  public  Me;  and  the  legislation 
already  attempted  in  some  States  to  prohibit  the  use  of  a 
person's  likeness  for  advertising  purposes,  or  to  protect  them 
from  the  kodak  fiend,  or  even  to  establish  a  general  right  to 
privacy  as  to  their  doings,  engagements,  social  entertain- 
ments, etc.,  when  they  are  of  no  legitimate  interest  to  the 
public.  Legislation  in  these  directions  has,  however,  only 
made  a  beginning. 

The  newspaper-libel  laws  usually  provide  that  the  retrac- 
tation shall  be  a  defence  to  a  libel  suit,  at  least  if  published 
in  as  large  a  type  and  in  as  conspicuous  a  manner  as  the 
original  article  complained  of;  sometimes  they  only  provide 
that  in  such  cases  the  newspaper  shall  be  relieved  of  all  but 
actual  damages.  The  wisdom  of  such  legislation  is  ques- 
tionable, as  the  old  adage  runs:  "A  lie  will  travel  around 
the  world  while  the  truth  is  putting  on  its  boots";  moreover, 
it  is  questionable  whether  they  are  not  class  legislation  in 
extending  to  a  certain  form  of  business  or  a  certain  trade  a 
protection  which  is  not  extended  to  others.  There  has  been 

301 


302  POPULAR  LAW-MAKING 

much  legislation  preventing  the  advertising  of  patent  medi- 
cines, immoral  remedies,  divorce  advertisement,  and  such 
matters.  Some  newspapers  have  objected  to  it,  but  the 
right  of  freedom  of  the  press  does  not  include  the  right  to  the 
use  of  the  mails,  and  the  papers  containing  the  objection- 
able advertisements  may  constitutionally  be  seized  or  denied 
delivery,  just  as  convict-made  goods  may  be  denied  circula- 
tion in  interstate  commerce,  by  act  of  Congress,  not,  of 
course,  of  the  States.  Mr.  Gompers,  of  the  American  Fed- 
eration of  Labor,  has  complained  that  the  injunction  of  their 
so-called  "unfair  list"  is  an  interference  with  the  freedom 
of  the  press,  and  I  presume  would  claim  that  an  injunction 
against  urging,  or  combining  to  urge,  by  oral  argument,  the 
members  of  the  various  unions  throughout  the  country  to 
boycott  a  certain  person,  would  be  an  interference  with  the 
right  of  freedom  of  speech,  and  that  therefore  if  the  courts 
did  not  so  decide,  the  laws  should  be  changed  by  statute. 
This,  also,  would  seem  open  to  the  objection  of  class  legis- 
lation if  extended  only  to  speech  or  publication  in  industrial 
disputes.  It  should  be  noted,  however,  that  the  broad  prin- 
ciple of  freedom  of  speech  by  all  persons  and  at  all  places 
is  first  adopted  in  the  American  constitutions,  freedom  of 
speech  in  England  in  its  historical  principles  extending  only 
to  freedom  of  speech  in  the  House  of  Parliament,  and  the 
right  of  assembly  and  petition  at  a  public  meeting;  freedom 
of  the  press,  however,  is  the  same  constitutional  principle  in 
both  countries,  but  only  extends  to  the  right  to  publish  with- 
out previously  obtaining  the  consent  of  any  censor  or  other 
authority,  and  the  person  publishing  still  remains  responsible 
for  all  damages  caused  by  such  act.  It  is  this  part  of  the 
law  which  Mr.  Gompers  would  alter,  or  rather  make  abso- 
lute; so  that  any  notice  or  threat  could  be  printed  and  cir- 
culated even  when  a  component  act  of  a  conspiracy. 

By  a  recent  act  of  Congress  the  right  of  freedom  of  speech 
does  not  extend  to  anarchistic  utterances,  or  speeches  or 
writings  aimed  against  order,  the  established  government, 


FREEDOM  OF  SPEECH  AND  OF  THE  PRESS     303 

and  inciting  to  assassination  or  crime.  Such  laws  are  barely 
constitutional  as  applied  to  United  States  citizens.  The  un- 
popularity of  the  alien  and  sedition  laws  under  the  ad- 
ministration of  John  Adams  will  be  remembered.  Since 
their  repeal,  no  attempt  at  a  law  of  government  libel  has 
been  made;  very  recently,  however,  where  certain  gentle- 
men, mostly  holding  important  government  offices,  were 
charged  with  having  made  money  out  of  the  Panama  Canal 
purchase,  the  weight  and  influence  of  the  administration 
was  given  to  the  attempt  to  indict  them  and  bring  them  to 
the  courts  of  the  central  government  at  Washington  for 
trial.  This  attempt,  however,  failed  in  the  courts,  as,  in 
the  Wilkes  case,  it  had  failed  more  than  a  century  before  at 
the  bar  of  public  opinion. 

But  the  law  is,  of  course,  much  stronger  as  to  persons  not 
citizens.  That  is  to  say,  no  one  has  any  right  to  immigrate 
into  this  country,  and  therefore  intending  immigrants  may 
be  kept  out  by  legislation  if  they  are  anarchists,  socialists, 
or,  indeed,  hold  any  opinion  for  the  moment  unpopular 
with  Congress.  The  attempt  has  so  far,  however,  not  been 
made  to  keep  out  any  but  violent  anarchists,  and,  of  course, 
persons  who  are  diseased,  of  immoral  life,  or  likely  to  become 
a  public  charge.  And  the  attempt  to  keep  them  under  the 
hand  of  the  central  government  for  years  after  they  have 
taken  their  place  for  good  or  ill  in  the  State  body  politic  has 
recently  failed  in  a  monumental  case  vindicating  anew  the 
Tenth  Amendment. 

Connected  in  most  people's  mind  with  the  right  of  privacy  .1 
is  the  right  of  a  person  to  keep  his  house  and  his  private  '\ 
papers  to  himself;  but  it  bears  no  relation  whatever  to  the 
very  new-fangled  notion  of  a  general  right  to  privacy.  The 
two  principles  are  that  an  Englishman's  house  is  his  castle. 
His  home,  even  though  it  be  but  one  room  in  a  tenement,  may 
not  be  invaded  by  anybody,  even  by  any  government  official 
or  authority  (except,  of  course,  under  modern  sanitary  police 
regulation),  without  a  written  warrant  specifying  the  reason 


304  POPULAR  LAW-MAKING 

for  such  invasion,  some  offence  with  which  the  man  is 
charged,  and  some  particular  document  or  paper,  or  other 
evidence  of  which  they  are  in  search.  The  principle  against 
general  warrants — that  is,  warrants  specifying  no  definite 
offence  or  naming  no  particular  person — was  established  in 
Massachusetts  in  Colony  times,  and  the  principle  taken  over 
to  England  and  affirmed  by  Lord  Camden — one  of  the  two 
or  three  celebrated  examples  where  we  have  given  a  new 
constitutional  principle  back  to  the  mother  country.  Now, 
closely  connected  with  this  is  another  principle  that  a  man 
shall  not  be  compelled  to  testify  in  a  criminal  matter  against 
himself,  or  that,  if  so  compelled  by  statute  or  official,  he  shall 
then  forever  be  immune  from  prosecution  for  any  crime 
revealed  by  such  testimony;  the  wording  of  the  earlier  con- 
stitutional provisions  was  "in  a  criminal  offence,"  but  by 
modern,  more  liberal  interpretation,  it  has  been  extended  to 
any  compulsory  testimony,  whether  given  in  a  criminal  pro- 
ceeding or  not.  This,  with  the  principle  protecting  a  man's 
private  affairs  from  inquisition,  is  expressed  in  our  Fourth 
and  Fifth  Amendments,  the  former  prohibiting  unreason- 
able searches  and  general  warrants,  and  the  latter  providing 
that  no  one  shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself,  nor  deprived  of  property  without 
due  process  of  law,  and  it  has  reasonably  been  argued  that 
an  inquisition  into  a  person's  business  or  book  of  accounts 
is  such  deprivation  of  his  property  without  due  process  of 
law,  at  least  when  applied  to  a  natural  person.  I  find  no 
legislation  limiting  these  important  principles,  but  on  the 
contrary  the  tendency  in  modern  statutes  and  modern  State 
constitutions  is  to  extend  and  generalize  them.  Of  such  is 
the  famous  clause  of  the  recent  constitutions  of  Kentucky 
and  Wyoming  that  "absolute  arbitrary  power  over  the  lives, 
liberty,  and  property  of  freemen  exists  nowhere  in  a  republic, 
not  even  in  the  largest  majority."  In  view  of  the  frequently 
successful  efforts  of  trust  magnates  and  others  to  escape 
indictment  or  punishment  by  some  enforced  revelation  of 


THE   IMMUNITY  OF  WITNESSES  305 

their  affairs  given  after  a  criminal  proceeding  has  been  com- 
menced or  before  a  grand  jury,  legislation  is  now  strongly 
urged  to  withhold  them  immunity  in  such  cases.  This 
would  relegate  us  to  the  early  state  of  things  where  they 
would  simply  refuse  to  answer,  so  that  it  may  be  doubted  if, 
on  the  whole,  we  should  gain  much.  The  right  of  an  Eng- 
lishman not  to  criminate  himself  is  too  cardinal  in  our  con- 
stitutional fabric  to  be  questioned  or  to  be  altered  without 
subverting  the  whole  structure.  Practically  it  would  seem 
as  if  a  little  more  intelligence  on  the  part  of  our  prosecutors 
would  meet  the  evil.  Corporations  themselves  are  never 
immune;  and  unless  the  wicked  official  actually  slept  with 
all  the  books  of  the  corporation  under  his  pillow,  it  would  be 
hard  to  imagine  a  case  where  some  corporate  clerk  or  sub- 
ordinate officer  could  not  be  subpoenaed  to  produce  the 
necessary  evidence.  Indeed,  as  has  been  well  argued  by 
leading  American  publicists,  the  sooner  the  public  learns  to 
go  behind  the  figment  of  the  corporation,  the  screen  of  the 
artificial  person,  into  the  human  beings  really  composing  it, 
the  quicker  we  shall  arrive  at  a  cure  for  such  evils  as  may 
exist.  Legislation  punishing  or  even  fining  an  offending 
corporation  is  in  the  last  sense  ridiculous.  It  is  necessarily 
paid  by  the  innocent  stockholders  or  the  public.  There  is 
always  some  one  person  or  a  number  of  persons  who  have 
done  or  suffered  the  things  complained  of;  after  all,  every 
act  of  the  corporation  is  necessarily  done  by  some  one  or 
more  individuals.  We  must  get  over  our  metaphysical 
habit  of  treating  corporations  as  abstract  entities,  and  again 
recognize  that  they  are  but  a  definite  number  of  natural  per- 
sons bound  together  only  for  a  few  definite  interests  and  with 
real  men  as  officers  who  should  be  fully  responsible  for  their 
actions.  Indeed,  it  ought  to  be  simpler  to  detect  and  punish 
offenders  than  in  the  case  of  mere  individuals  unincorporated, 
for  the  very  fact  that  a  corporation  keeps  books  and  acts 
under  an  elaborate  set  of  by-laws  and  regulations  gives  a 
clew  to  its  proceedings,  and  indicates  a  source  of  information 


306  POPULAR  LAW-MAKING 

as  to  all  its  acts.  One  clerk  may  therefore  reveal,  and  prop- 
erly reveal,  books  and  letters  which  shall  incriminate  "those 
above";  one  employee  may  show  ten  thousand  persons 
guilty  of  an  unlawful  combination,  and  properly  so.  There 
is  no  reason  why  he  should  not,  and  the  nine  thousand  nine 
hundred  and  ninety-nine  others  deserve,  and  are  entitled  to, 
no  immunity  whatever  from  his  revelation. 

The  religious  rights,  although  for  the  most  part  peculiar 
to  the  American  Constitution,  adopted  by  us,  indeed,  as  a 
result  of  the  history  of  the  two  or  three  centuries  preceding  in 
England,  but  hardly  in  any  particular  a  part  of  the  British 
Constitution,  were  by  the  reason  of  our  very  origin  so  strongly 
asserted  and  so  highly  valued  with  us  that  no  legislation  has 
been  found  necessary  on  the  subject.  Perhaps  the  sole  im- 
portant instance  in  which  the  question  has  come  up  has  been 
that  of  instruction  in  the  public  schools  and  the  use  of  the 
money  raised  by  common  taxation  for  special  religious  pur- 
poses. Very  generally  the  latter  is  forbidden  in  our  State 
constitutions,  the  Federal  Constitution  by  the  First  Amend- 
ment merely  protecting  the  right  from  the  action  of  Congress. 
Owing  to  decisions  of  the  Supreme  Court,  in  the  South  it 
has  become  possible  to  divide  school  appropriations  between 
schools  for  whites  and  blacks,  and  it  is  presumable  that  the 
same  thing  might  be  done  as,  for  instance,  between  Roman 
Catholics  and  others,  and  something  of  the  sort  has,  I  be- 
lieve, been  done  with  the  appropriations  for  the  education 
of  Indians. 

The  few  statutes  we  find  upon  this  matter  tend  to  still 
further  extend  and  liberalize  religious  rights.  Almost  uni- 
versally now  a  man  is  not  forbidden  from  testifying  or  being 
a  witness  by  reason  of  his  belief  or  disbelief,  even  when  he  is 
an  atheist.  The  latter  law  is  not,  however,  quite  universal. 
He  must,  in  some  States,  believe  at  least  in  the  existence  of 
God,  or  of  a  future  state  of  reward  or  punishment.  Mor- 
mons, at  one  time,  claimed  the  right  to  practise  polygamy 
as  a  part  of  their  religion  guaranteed  to  them  by  the  Con- 


THE  RELIGIOUS  RIGHTS  307 

stitution;  the  contention  did  not  prevail;  on  the  contrary 
the  Mormon  States  were  made  to  submit  to  an  enabling  act 
under  which  they  bound  themselves  to  adopt  State  consti- 
tutions providing  for  all  time  against  polygamous  practices. 
Such  a  treaty  is  not,  of  course,  binding  upon  a  sovereign 
State  unless  Mormonism  be  deemed  inconsistent  with  a 
republican  form  of  government;  so  that  Utah,  for  instance, 
has  probably  the  right  to  re-establish  Mormonism  to-morrow 
so  far  as  the  Federal  Constitution  is  concerned.  Whether  it 
would  be  permitted  by  a  strenuous  president  having  public 
sentiment  at  his  back  may  indeed  be  questioned.  In  like 
manner,  Christian  Science  practitioners  have  invoked  the 
constitutional  right  of  religious  belief  against  the  common 
law  requiring  that  those  offering  themselves  to  practise 
medicine  should  be  reasonably  skilled  in  their  trade.  Legis- 
lation permitting  Christian  Scientists  to  practise  freely  has 
been  attempted  in  nearly  all  the  States,  but  has  not,  so  far  as 
I  am  informed,  succeeded  in  any,  although  a  good  many 
States  have  adopted  statutes  extending  the  right  to  osteo- 
paths. Under  the  common  law  of  England,  re-established 
in  Massachusetts  by  a  famous  decision  1  twenty  years  ago, 
a  person  holding  himself  out  as  a  surgeon  or  medical  practi- 
tioner, who  is  absolutely  uninstructed  and  ignorant,  is  guilty 
even  of  criminal  negligence,  and  responsible  for  the  death  of 
his  patient,  even  to  the  point  of  manslaughter, 
i  Commonwealth  v.  Pierce,  138  Mass.  165. 


XVI 

LEGISLATION    CONCERNING    PERSONAL    AND 
RACIAL  RIGHTS 

This  is,  of  course,  a  matter  of  which  books  might  be,  and  in- 
deed have  been,  written ;  our  general  essay  on  popular  legis- 
lation can  do  no  more  than  summarize  past  law-making  and 
the  present  trend  of  legislatures,  much  as  some  history  of 
the  people  of  England  might  broadly  state  the  economic 
facts  and  laws  of  the  Corn-law  period  in  England.  Racial 
legislation  may,  of  course,  be  considered  from  the  point  of 
view  of  the  negro,  the  Indian,  and  the  alien,  and  indeed  it 
differs  much  in  all  three.  Other  personal  legislation  is 
largely  concerned  with  the  right  to  exercise  trade,  already 
discussed,  and  the  questions  of  marriage  and  divorce  we 
reserve  for  the  next  chapter.  In  the  past  we  have  been  very 
unjust,  not  to  say  cruel,  to  the  Indian,  and  though  naturally 
in  some  respects  a  high-natured  race,  have  constantly  denied 
him  any  political  share  in  the  government,  and  only  in  the 
very  last  few  years  grudgingly  extended  it  to  such  Indians 
as  renounce  their  tribe  and  adopt  the  habits  and  mode  of  life 
of  the  white  man,  or,  as  in  early  England,  to  such  freeholders 
as  acquire  a  quarter  section  of  land.  In  the  negro's  case, 
however,  we  atoned  for  the  early  crime  of  enslavement  by 
the  sentimental  hurry  with  which  we  endeavored  in  the  '60's 
and  '70's  of  the  last  century  to  take  him  up  by  law  and  force 
him  into  exact  equality,  social  as  well  as  political,  with  the 
white  man.  To  aliens,  in  the  third  hand,  we  have  been  con- 
sistently generous,  having  shown  only  in  the  very  last  few 
years  any  attempt  whatever  to  exclude  the  most  worthless  or 
undesirable;  except  that  the  prejudice  against  the  Mongo- 

308 


THE  RACE  QUESTION  309 

Han  in  the  far  West  is  quite  as  bitter  as  it  ever  was  against 
the  negro  in  the  South,  and  he  is  still  sternly  refused  citi- 
zenship, even  national  citizenship,  which  we  freely  extend 
to  the  African.  We  are  thus  left  in  the  ridiculous  situation 
of  providing  that  nobody  may  be  a  citizen  of  our  great  Re- 
public except  a  white  Caucasian  and  a  black  African,  with 
considerable  ambiguity  still  as  to  what  the  word  "white" 
means.  The  American  Indians  are,  indeed,  admitted  under 
the  conditions  before  mentioned,  so  that  as  a  catch-word  the 
reader  may  remember  that  we  are  a  red,  white,  and  black 
country,  but  not  a  brown  or  yellow  one.  All  this  is,  of 
course,  the  accident  of  history;  but  the  accidents  of  history 
are  its  most  important  incidents. 

Taking  Asiatic  races  first,  the  far  Western  States  vie  with 
each  other  in  passing  legislation  which  shall  deny  them  the 
right  to  life,  or  at  least  to  live  upon  any  equality  of  competi- 
tion with  the  white.  Most  of  such  laws  are,  of  course,  un- 
constitutional, but  they  were  at  one  time  enacted  with  more 
rapidity  than  the  Supreme  Court  of  the  United  States  could 
declare  them  so.  Congress  tries  to  be  more  reasonable  and, 
indeed,  has  to  be  so,  in  view  of  the  fact  that  it  is  a  national 
Congress  living,  with  the  executive,  in  direct  touch  with  the 
foreign  nations  themselves.  Broadly  speaking,  our  national 
legislation  is  to  exclude  immigration,  but  guarantee  equality 
of  property  right,  at  least,  to  such  Mongolian  aliens  as  are 
actually  in  the  country;  and  to  extend  or  guarantee  such 
right  of  treatment  by  treaties,  which  treaties  are,  of  course, 
acts  of  Congress,  like  any  other  act  of  Congress,  entirely 
valid  in  favor  of  the  foreign  power  and  enforceable  by  it  even 
to  the  issue  of  war,  but  possibly,  as  a  constitutional  ques- 
tion, not  enforceable  by  the  Federal  government  against  the 
States.  An  endless  mass  of  legislation  in  California  and 
other  Western  States  has  been  devised,  either  openly  against 
the  Chinese  or  so  couched  as  to  really  exclude  them  from  the 
ordinary  civic  liberties,  and  most  of  our  State  laws  or  courts 
declare  that  the  Japanese  are  Mongolian  although  that  peo- 


310  POPULAR  LAW-MAKING 

pie  deny  it.  Many  statutes,  moreover,  are  aimed  at  Asiatics 
in  general;  which  would  possibly  include  the  Hindoos,  who 
are  of  exactly  the  same  race  as  ourselves.  Indeed,  some 
judges  have  excluded  Hindoos  from  naturalization,  or  per- 
sons of  Spanish  descent,  while  admitting  negroes,  which  is 
like  excluding  your  immediate  ancestors  in  favor  of  your 
more  remote  Darwinian  ones.  Even  in  New  York  and 
other  Eastern  States,  the  employment  of  aliens,  particularly 
Asiatics,  is  forbidden  in  all  public  work — which  laws  may 
be  invalid  as  against  a  Federal  treaty.  Yet  statutes  against 
the  employment  of  any  but  citizens  of  the  United  States  in 
public  works  are  growing  more  frequent  than  ever,  and 
seem  to  me  quite  within  the  rights  of  the  State  itself  to  de- 
termine. But  Pennsylvania  could  not  impose  a  tax  of  three 
cents  per  day  upon  all  alien  laborers,  to  be  paid  by  the  em- 
ployer. Many  States  are  beginning  to  provide  against  the 
ownership  of  land  by  aliens.  This,  of  course,  is  perfectly 
constitutional  and  has  full  justification  in  the  history  and 
precedent  of  most  other  countries,  and  as  applied  to  foreign 
corporations  it  is  still  more  justifiable;  and  the  Western 
States  very  generally  provide  against  the  ownership  of  land, 
other  than  such  as  may  be  taken  on  mortgage,  by  foreign 
corporations,  or  corporations  even  of  which  a  large  propor- 
tion of  the  stock  is  held  by  foreigners. 

Racial  legislation  as  to  negroes  may  be  divided  into  laws 
bearing  on  their  legal,  political,  and  social  rights,  including, 
in  the  latter,  contracts  of  labor  and  of  marriage.  By  the 
Thirteenth,  Fourteenth,  and  Fifteenth  Amendments,  all 
adopted  within  ten  years  after  the  war,  we  endeavored  to 
put  the  negro  in  a  legal,  a  political,  and  a  social  equality  with 
whites  in  every  particular.  A  broad  statement,  sufficiently 
correct  for  the  general  reader,  may  be  made  that  only  the 
legal  part  has  succeeded  or  has  lasted.  That  legislation 
which  is  aimed  at  social  equality,  all  of  it  Federal  legislation, 
has  generally  proved  unconstitutional,  and  that  part  which 
has  been  aimed  at  political  equality  has,  for  one  reason  or 


THE   WAR   AMENDMENTS  AND  THEIR   EFFECTS   311 

another,  been  inefficient.  Moreover,  the  great  attempt  in 
the  Fourteenth  Amendment  to  place  the  ordinary  social, 
civil,  and  political  rights  of  the  negro,  and  necessarily,  there- 
fore, of  every  one  else,  under  the  cegis  of  the  Federal  govern- 
ment, Federal  courts,  and  Federal  legislation,  has  been  nulli- 
fied; first,  by  court  decision,  and  later,  if  we  may  trust  the 
signs  of  the  times,  by  contemporary  public  opinion.  The 
only  thing  that  remains  is  that  the  States  cannot  make  laws 
which,  on  their  face,  are  discriminations  against  the  negro, 
or  in  social  matters  against  any  other  race;  and  in  political 
matters,  the  Fifteenth  Amendment  has  proved  effective  to 
render  null  State  laws  which  on  their  face  are  designed  to 
restrict  or  deny  their  equal  right  of  suffrage. 

Legislation  concerning  labor,  the  industrial  condition,  and 
contract  rights  of  the  negro,  such  as  the  peonage  laws,  we 
have  considered  in  an  earlier  chapter;  both  State  and  na- 
tional laws  exist,  and  the  Thirteenth  Amendment,  being  self- 
executing,  has  proved  effective.  Under  the  Fifteenth  Amend- 
ment there  is  little  political  legislation,  except  the  effort  in 
Southern  States  by  educational  or  property  qualifications, 
and  most  questionably  by  the  so-called  "grandfather  clause," 
to  exclude  most  negroes  from  the  right  of  suffrage.  Laws 
imposing  property  and  educational  qualifications  are,  of 
course,  valid,  although  designed  to  have  the  effect  of  exclud- 
ing a  large  proportion  of  the  negroes  from  voting;  laws,  on 
the  other  hand,  which  give  a  permanent  right  of  suffrage  to 
the  descendants  of  a  certain  class,  as  of  those  voters,  all 
white,  who  were  entitled  to  vote  in  Southern  States  in  the 
year  1861,  are  probably  unconstitutional  as  establishing  an 
hereditary  privileged  class,  though  there  has  as  yet  been  no 
square  decision  on  this  point  by  the  Supreme  Court  of  the 
United  States.  But  as  there  is  no  further  legislation  on 
these  subjects,  to  pursue  the  matter  further  would  carry  us 
into  constitutional  law. 

In  the  third  field,  that  of  social  legislation,  there  has  been 
a  vast  number  of  laws,  first  by  Congress  with  the  intention, 


312  POPULAR  LAW-MAKING 

under  the  Fourteenth  Amendment,  of  enforcing  social  and 
industrial  equality  and  providing  Federal  machinery  for 
securing  it  (the  great  substance  of  this  has  been  held  uncon- 
stitutional and  has  passed  away) ;  later  by  the  States,  usually 
the  Southern  States,  with  the  exactly  opposite  purpose  of 
separating  the  races,  at  least  in  social  matters,  and  of  sub- 
jecting them  to  a  stricter  law  of  labor  contract  than  has,  in 
our  country  at  least,  been  imposed  upon  other  citizens. 

Even  this  matter  of  social  legislation,  which  alone  remains 
to  be  discussed  in  this  book,  is  quite  too  vast  for  more  than 
a  brief  sketch.  Among  the  many  monographs  on  the  sub- 
ject may  be  mentioned  the  article  of  G.  T.  Stevenson  on  the 
"Separation  of  the  Races  in  Public  Conveyances."  l  Even 
this  comparatively  narrow  matter  is  by  no  means  exhausted 
in  an  article  covering  twenty  pages.  Much  of  the  social 
separation  of  the  races  is,  of  course,  brought  about  without 
statute  law,  but  by  custom,  or  even  we  may  say  customary 
law,  which  is  always  apt  to  be  the  better  enforced ;  and  under 
the  civil  rights  decisions  of  the  United  States  Supreme  Court 
in  1883,  such  customary  law  has  been  rendered  immune 
from  Federal  control.  Legislation  now  exists  in  all  South- 
ern States  as  to  separate,  though  equal,  accommodations  in 
public  conveyances;  at  one  time  such  statutes  were  restricted 
to  interstate  commerce,  but  the  present  tendency  of  court 
decision  appears  to  be  to  recognize  even  their  interference 
with  interstate  commerce  as  part  of  the  reasonable  State 
police  jurisdiction.  Such  statutes  apply  generally  to  rail- 
roads, steamboats,  and  street  cars,  or  other  conveyances  of 
transportation.  They  are  not  so  usual  as  to  hotels,  eating- 
houses,  theatres,  or  other  public  places,  probably  because  in 
such  it  is  more  easy  to  secure  the  desired  segregation  without 
legislation.  We  may,  therefore,  conclude  that  legislation  on 
this  point  will  be  universal  in  the  South  and  in  Oklahoma 
or  other  border  States  with  Southern  sympathies,  and  will 
not  be  declared  unconstitutional  by  the  courts. 

1  American  Political  Science  Review,  vol.  Ill,  No.  2,  1909. 


THE  NEGRO'S  SOCIAL  AND  PROPERTY  RIGHTS  313 

The  labor  unions  very  generally  exclude  negroes,  both  in 
the  South  and  North,  and  in  many  Southern  States  the 
whites  refuse  to  work  with  negroes  in  mills.  Until  and  unless 
labor  unions  are  chartered  or  incorporated  under  legislation 
forbidding  such  action,  it  is  probable  that  their  by-laws 
excluding  negroes,  though  possibly  unreasonable  at  the  com- 
mon law,  could  not  be  reached  by  the  Fourteenth  Amend- 
ment; and  public  sentiment  in  the  States  where  such  by- 
laws are  common  would  probably  prevent  any  permanent 
vindication  of  the  right  of  the  negro  to  join  labor  unions 
by  State  courts.  That  is  to  say,  countervailing  legislation 
would  promptly  be  adopted. 

Coming  to  education,  the  same  principle  seems  to  be 
established,  that  if  the  facilities  are  equal  the  education  may 
be  separate  for  the  different  races,  just  as  it  may  be  for  the 
different  sexes;  and  it  would  even  appear  that  when  the  ap- 
propriation is  not  adequate  for  giving  higher  or  special  edu- 
cation to  both  races,  particularly  when  there  are  few  negroes 
applying  for  it,  high-schools  or  special  schools  may  be  estab- 
lished for  whites  alone. 

Coming  to  the  matter  of  sexual  relation,  a  different  prin- 
ciple applies.  Under  their  unquestioned  power  of  defining 
crimes,  their  police  power  in  criminal  and  sanitary  matters, 
the  States  may  forbid  or  make  criminal  miscegenation. 
Cohabitation  without  marriage  may,  of  course,  be  forbidden 
to  all  classes,  and  in  the  case  of  cohabitation  between  white 
and  black  the  penalty  may  be  made  more  severe,  for  it  has 
been  held  that  as  both  parties  to  the  offence  are  punished 
equally,  there  is,  under  such  statutes,  no  denial  of  the  equal 
protection  of  the  law.  A  fortiori,  marriage  may  be  forbidden 
or  declared  null  between  persons  of  different  race,  and  the 
tendency  so  to  do  is  increasing  very  decidedly  in  the  South, 
and  is  certainly  not  decreasing  in  the  North.  Indeed,  con- 
stitutional amendments  are  being  adopted  and  proposed  hav- 
ing this  in  view,  "the  purity  of  the  race."  Recent  plays 
and  magazine  articles,  with  which  most  of  our  readers  will 
be  familiar,  sufficiently  bear  out  this  point. 


314  POPULAR  LAW-MAKING 

In  property  rights,  however,  I  can  find  no  legislation  which 
discriminates  against  the  negro,  and  there  is  some  in  his 
favor.  With  the  exception  of  the  labor  or  peonage  laws, 
discussed  separately,  I  have  found  no  legislation  which 
limits  his  property  or  contract  rights.  On  the  other  hand, 
there  is,  in  the  several  States,  legislation  requiring  that  he 
shall  be  given  life  or  health  insurance  policies  on  the  same 
terms  and  conditions  as  are  applied  to  whites,  despite  the 
alleged  fact  that  his  expectation  of  life  is  less  and  not  so  easy 
to  determine,  owing  to  the  lack  of  information  as  to  the  health 
and  longevity  of  his  forebears.  Sketching  first  thus  our 
general  conclusions  it  remains  for  us  only  to  give  a  few  con- 
crete examples  drawn  from  the  legislation  of  the  last  twenty 
years : 

In  1890,  soon  after  the  civil-rights  cases  were  decided,  we 
find  some  State  legislation  to  protect  the  negro  in  his  civil 
rights;  but  the  first  "Jim  Crow"  laws,  providing  for  separa- 
tion in  public  conveyances,  etc.,  began  in  1865  and  1866  in 
Florida,  Mississippi,  and  Texas,  and  are  continued  in  other 
States  in  this  year.  In  1892  there  are  laws  for  separate 
refreshment  rooms  and  bath-houses,  and  providing  that 
negroes  and  whites  shall  not  be  chained  together  in  jails. 
In  1893  there  is  legislation  for  separate  barber  shops,  and 
the  first  law  requiring  equal  treatment  by  life-insurance  com- 
panies is  passed  in  Massachusetts.  In  1895  there  is  legisla- 
tion against  the  mixture  of  races  in  schools.  In  1898  the 
laws  and  constitutional  provisions  for  practical  negro  dis- 
franchisement  begin  in  South  Carolina,  Mississippi,  and 
Louisiana.  On  the  other  hand,  in  1900,  New  York  passes 
a  statute  that  there  shall  be  no  separate  negro  schools,  and 
in  1901  Illinois  adopts  civil-rights  laws,  followed  in  1905 
by  five  other  States.  In  1907  South  Carolina  makes  it  a 
misdemeanor  to  serve  meals  at  station  eating-houses  to 
whites  and  blacks  in  the  same  room.  In  1908  Maryland 
and  Oklahoma  provide  for  separate  cars  and  separate  rooms. 
In  1894  we  find  nine  States  prohibiting  miscegenation.  In 
1902  Florida  makes  miscegenation  a  felony,  and  in  1908 


THE   PRIVILEGED  CLASSES  315 

Louisiana  declares  concubinage  between  a  Caucasian  and 
a  negro  to  be  also  a  felony,  while  Oklahoma  adopts  the  mis- 
cegenation law. 

These  examples  of  legislation  are  not  intended  to  be  ex- 
haustive, but  will  serve  to  give  the  reader  a  general  idea  of 
the  trend  of  popular  law-making  in  this  important  matter. 

Personal  privilege,  depending  not  upon  race,  but  upon 
legislation,  or  inheritance,  is,  of  course,  strictly  forbidden  in 
each  State  by  both  constitutions,  State  and  Federal.  The 
growth  of  a  contrary  principle  is  only  noteworthy  on  the 
two  lines  touching  respectively  the  whites  in  the  South  and 
veterans  of  wars  in  the  North.  It  must  be  said  that  legisla- 
tion in  the  interest  of  the  Grand  Army  of  the  Republic,  and 
even  of  the  veterans  of  the  Spanish  War,  and  even  in  some 
States  of  the  sons  or  descendants  of  such  veterans  respec- 
tively, has  come  very  near  the  point  of  hereditary  or  social 
privilege.  The  struggles  of  so-called  "Organized  Labor"  to 
establish  a  privileged  caste  have  so  far  been  generally  un- 
successful, always  so  in  the  courts,  and  usually  so  in  the 
legislatures;  but  in  many  States  those  who  have  enlisted  in 
either  wars,  Civil  or  Spanish,  wholly  irrespective  of  actual 
service  or  injury,  are  entitled  not  only  to  pensions,  Federal 
and  State,  but  to  a  diversity  of  forms  of  State  aid,  to  general 
preference  in  public  employment,  and  even  to  special  privi- 
lege or  exemption  from  license  taxes,  etc.,  in  private  trades, 
and  their  children  or  descendants  are,  in  many  States,  en- 
titled to  special  educational  privilege,  to  support  in  State 
schools  or  industrial  colleges,  to  free  text-books,  and  other 
advantages.  Presumably  some  of  these  matters  might  be 
successfully  contested  in  the  courts,  but  they  never  have 
been.  As  to  pensions,  nothing  here  need  be  said.  The 
reader  will  remember  the  familiar  fact  that  our  pensions  in 
time  of  peace  now  cost  more  than  the  maintenance  of  the 
entire  German  army  on  a  war  footing  or  than  the  maintenance 
of  our  own  army.  The  last  pensioner  of  the  Revolutionary 
War,  which  ended  in  1781 — that  is  to  say,  the  last  widow  of 


316  POPULAR  LAW-MAKING 

a  Revolutionary  soldier — only  died  a  few  years  ago,  early  in 
the  twentieth  century.  The  Order  of  the  Cincinnati,  founded 
by  Washington  and  Lafayette,  was  nevertheless  a  subject 
of  jealous  anxiety  to  our  forefathers;  but  apparently  the 
successful  attempt  of  volunteers  disbanded  after  the  Civil 
and  the  Spanish  Wars,  although  far  more  menacing  because 
embodying  social  and  political  privilege,  not  a  mere  badge 
of  honor,  seems  to  call  forth  but  little  criticism. 


XVII 
SEX  LEGISLATION,   MARRIAGE   AND   DIVORCE 

The  notion  that  a  woman  is  in  all  respects  a  citizen,  en- 
titled to  all  rights,  political  as  well  as  property  and  social, 
was  definitely  tested  before  our  Supreme  Court  soon  after 
the  adoption  of  the  Fourteenth  Amendment,  on  the  plea 
that  the  wording  of  that  amendment  gave  a  renewed  recog- 
nition to  the  doctrine  that  a  woman  was  a  person  born  or 
naturalized  in  the  United  States  and  therefore  a  citizen  and 
entitled  to  the  equal  protection  of  the  laws.  The  court  sub- 
stantially decided  *  that  she  was  a  citizen,  was  entitled  to  the 
equal  protection  of  the  laws,  but  not  to  political  privileges 
or  burdens  any  more  than  she  was  liable  to  military  service. 
The  State  constitutions  of  many  States,  among  them  Illi- 
nois, have  provided  that  a  woman  is  entitled  to  all  ordinary 
rights  of  property  and  contract  "  the  same  as  "  a  man.  Under 
this  provision,  when  laws  were  passed  for  the  protection  of 
women,  forbidding  them  to  work  more  than  a  certain  num- 
ber of  hours  per  day,  they  were  originally  held  unconstitu- 
tional. The  so-called  women's-rights  people  (one  could  wish 
that  there  were  a  better  or  more  respectful  word)  seem 
themselves  to  be  divided  on  this  point.  The  more  radical 
resent  any  enforced  inequality,  industrial  or  social,  between 
the  sexes.  For  instance,  many  States  have  statutes  forbid- 
ding women  or  girls  to  serve  liquor  in  saloons  or  to  wait  upon 
table  in  restaurants  where  liquor  is  served.  Such  statutes, 
obviously  moral,  are  nevertheless  resented.  On  the  other 
hand,  the  Supreme  Court  of  the  United  States  has  taken 
the  conservative  view,  that  there  is  a  difference  both  in  phy- 

>  Minor  v.  Happersett,  21  Wallace  166. 
317 


318  POPULAR  LAW-MAKING 

sique  and  character  between  the  sexes,  as  well  as  different 
responsibilities  and  a  different  social  interest,  so  that  it  is 
still  possible,  as  it  has  been  possible  in  the  past,  to  impose 
by  law  special  restrictions  on  the  contracts  of  women.  The 
law  of  Oregon,  therefore,  not  permitting  them  to  make  per- 
sonal contract  for  more  than  eight  hours  per  day  was  sus- 
tained both  in  the  State  and  the  Federal  Supreme  Courts ;  and 
a  similar  law  by  the  highest  court  of  Illinois,  reversing  its 
own  prior  decision.1  This  matter  is  of  such  interest  and  of 
such  importance  that  it  is  frequently  placed  in  State  consti- 
tutions, and  it  seems  worth  while  to  summarize  their  pro- 
visions. The  advanced  position  is  now  squarely  put  only  in 
the  constitution  of  California,  which  provides  that  no  per- 
son shall  on  account  of  sex  be  disqualified  from  entering  upon 
or  pursuing  any  lawful  business,  vocation,  or  profession. 
Such  a  constitution  as  this  would,  of  course,  make  it  impossi- 
ble even  to  pass  such  laws  as  the  ones  just  mentioned  for- 
bidding them  to  serve  in  restaurants,  such  employment  being 
lawful  as  to  men.  But  no  other  State  follows  that  extreme 
provision,  and,  indeed,  the  clause  in  the  constitution  of 
Illinois  seems  now  to  have  been  repealed. 

As  to  property  matters  it  may  be  broadly  stated  that  they 
have  in  general  precisely  the  same  rights  that  men  have,  and 
in  several  States  more;  that  is  to  say,  a  woman  frequently 
has  a  larger  interest  in  the  property  of  a  man  at  his  death, 
than  the  man  has  in  hers,  should  she  predecease  him;  and 
universally  she  is  given  a  share  of  the  husband's  property 
in  case  of  divorce,  either  outright  or  by  way  of  alimony, 
which,  so  far  as  I  know,  is  never  awarded  to  the  man  even  if 
he  be  the  innocent  party.  In  New  Jersey  and  some  other 
States,  a  married  woman  is  not  permitted  to  guarantee  or 
endorse  the  notes  or  debts  of  her  husband.  Many  of  the 
Southwestern  States,  from  Louisiana  to  California,  recog- 
nize or  adopt  the  French  idea  of  community  property.  By 
the  Mississippi  constitution  "the  legislature  shall  never 

1  See  above,  p.  227. 


THE   LEGAL  RIGHTS  OF  WOMEN  319 

create  by  law  any  distinction  between  the  rights  of  men  and 
women  to  acquire,  own,  enjoy,  and  dispose  of  property  of  all 
kinds,  or  other  power  of  contract  in  reference  thereto."  But 
this  does  not  prevent  laws  regulating  contracts  between  hus- 
band and  wife. 

In  matters  of  divorce  and  personal  relation,  such  as  the 
guardianship  of  children,  the  tendency  has  also  been  to  put 
women  on  an  equality  with  men  and  more  so.  That  is  to 
say,  divorces  are  awarded  women  which  for  similar  reasons 
would  not  be  awarded  men,  both  by  statute  and  by  usual 
court  decision,  and  although  a  very  few  States,  such  as  re- 
cently developed  in  the  conservative  State  of  South  Carolina, 
retain  the  common-law  idea  that  the  father  must  be  the  head 
of  the  family,  many  States  provide  that  the  rights  of  the 
parents  to  the  custody  and  education  of  their  children  shall 
be  equal.  In  other  words  they  are  to  be  brought  up  by  a 
committee  of  two.  Nevertheless,  in  California  and  other 
code  States  of  the  West  it  is  still  declared  that  the  husband 
is  the  head  of  the  family  and  may  fix  the  place  of  abode,  and 
the  wife  must  follow  him  under  penalty  of  desertion.  Such 
matters  are  more  often  determined  by  custom  or  by  court 
decision  on  the  common  law  than  by  written  statute;  and 
it  is  apprehended  that  the  judges  will  usually  follow  the  more 
conservative  rule  of  giving  the  custody  of  infant  children  to 
the  mother,  and  of  more  mature  children,  particularly  the 
boys,  to  the  father. 

Divorce  statistics  on  the  subject  are  extremely  misleading 
for  two  great  reasons:  First,  because  in  the  nature  of  the 
case,  and  perhaps  of  the  American  character,  in  two  cases 
out  of  three  a  divorce  is  granted  for  fault  of  the  husband.1 
And  in  the  second  place,  because  a  false  cause  is  given  in  a 
great  majority  of  cases.  In  England  until  recently  the  rule 
was  absolute  that  a  woman  could  not  get  a  divorce  for  adul- 
tery alone,  but  there  had  to  be  cruelty  besides;  while  the 
man  could  be  divorced  for  the  first-named  cause.  No  such 

>  17.  S.  Labor  Bulletin,  Special  Reports  on  Divorce,  1889,  1908. 


320  POPULAR  LAW-MAKING 

rule  has  ever  prevailed  in  any  State  of  this  country.  Deser- 
tion and  failure  to  support,  on  the  other  hand,  are  much  more 
easily  proved  by  the  wife.  In  short,  it  is  not  too  much  to  say 
that  in  all  matters  of  divorce  she  stands  in  a  position  of 
advantage. 

The  same  thing  is  in  practice  true  as  to  marriage.  Under 
liberal  notions,  prevailing  until  recently  in  all  our  States, 
certainly  in  all  where  the  so-called  common-law  marriage 
prevails,  it  is  extremely  easy  for  a  woman  to  prove  herself 
the  lawful  wife  of  any  man  she  could  prove  herself  to  have 
known,  and  sometimes  even  without  proving  the  acquain- 
tance. The  "common-law"  marriage,  by  the  way,  is  not, 
so  far  as  I  can  determine,  the  English  common  law,  nor  ever 
was.  If  any  common  law  at  all,  it  is  the  Scotch  common 
law,  the  English  law  always  having  required  a  ceremony  by 
some  priest  or  at  least  some  magistrate,  as  does  still  the  law 
of  New  England.  Under  the  influence  of  the  State  Commis- 
sioners for  Uniformity  of  Law  this  matter  has  been  amended 
in  the  State  of  New  York,  so  that  if  there  be  no  ceremony 
there  must  at  least  be  some  written  evidence  of  contract,  as 
in  the  case  of  a  sale  of  goods  and  chattels  under  the  statute 
of  frauds;  the  contract  of  marriage  being  thus,  for  the  first 
time  in  New  York,  made  of  equal  importance  with  that  of 
the  sale  of  goods  to  the  value  of  one  hundred  dollars.  Much 
difference  of  opinion  exists  between  the  South  and  the  North 
upon  this  point,  the  Southern  view  being  more  remarkable 
for  chivalry,  and  the  Northern  for  good  sense.  Southern 
members  of  the  National  Conference  of  Commissioners 
claimed  that  any  such  law  would  result  in  disaster  to  many 
young  girls;  that  if  they  had  to  travel  ten,  twenty,  or  thirty 
miles  to  find  a  minister  or  justice  of  the  peace  they  would  in 
many  cases  dispense  with  the  formality  or  be  impatient  of 
the  delay;  and  that  anyhow  on  general  principles  any  un- 
married man  who  had  seen  an  unmarried  young  woman 
two  or  three  times  ought  to  be  engaged  to  her  if  he  was  not. 
The  Northern  Commissioners,  on  the  other  hand,  were  de- 


POLITICAL  RIGHTS  OF  WOMEN  321 

si'rous  of  protecting  the  man,  and  especially  his  legitimate 
widow  and  children,  from  the  female  adventuress,  which 
view  the  South  again  characterized  as  cynical.  There  is 
probably  something  to  be  said  for  both  sides. 

Coming  finally  to  political  rights,  the  subject  of  women's 
suffrage  alone  might  well  be  reserved  for  a  separate  chapter, 
if,  indeed,  it  is  to  be  disposed  of  by  any  one  mind;  but  at 
least  the  actual  occurrences  may  be  stated.  As  mentioned 
above  in  our  chapter  on  political  rights,  it  now  exists,  by  the 
constitutions  of  four  States;  and  has  been  submitted  by  con- 
stitutional amendment  in  several  others  and  refused.  No 
actual  progress,  therefore,  has  been  made  in  fifteen  years. 
As  to  office-holding,  the  constitutions  of  Missouri  and  Okla- 
homa— one  most  conservative,  the  other  most  radical — both 
specify  that  the  governor  and  members  of  the  legislature 
must  be  male.  In  South  Dakota  women  may  hold  any 
office  except  as  otherwise  provided  by  the  constitution.  In 
Virginia,  by  the  constitution,  they  may  be  notaries  public. 
In  all  other  States,  save  the  four  women's-suffrage  States, 
the  common  law  prevails,  and  they  may  not  hold  political 
office.  The  first  entirely  female  jury  was  empanelled  in 
Colorado  this  year  (1910).  In  some  States,  however,  stat- 
utes have  been  passed  opening  certain  offices,  such  as  notaries 
public,  and,  of  course,  the  school  commission.  Such  statutes 
are,  in  the  writer's  opinion,  illogical;  if  women,  under  a 
silent  constitution,  can  hold  office  by  statute,  they  can  do  it 
without.  It  is  or  is  not  a  constitutional  right  which  the 
legislature,  at  least,  has  no  power  to  give  or  withhold. 

Generally  in  matters  of  education  they  have  the  same 
rights  both  to  teach  and  be  taught  as  males.  Indeed,  Idaho, 
Washington,  and  Wyoming  declare  that  the  people  have  a 
right  to  education  "without  distinction  of  race,  color,  caste, 
or  sex,"  and  that  is  practically  the  case  by  the  common  law 
of  all  States,  though  there  is  nothing  to  prevent  either  co- 
education or  segregation  in  schools.  The  recent  tendency 
of  custom  is  certainly  in  the  latter  direction,  Tufts,  Wesleyan, 


322  POPULAR  LAW-MAKING 

and  other  Eastern  colleges  having  given  up  coeducation 
after  trial,  and  the  principle  having  been  attacked  in  Chicago, 
Michigan,  and  other  universities,  and  by  many  writers  both 
of  fact  and  fiction. 

These  are  the  abstract  statements,  but  one  or  two  matters 
deserve  more  particular  treatment.  First  of  all,  divorce  leg- 
islation. Many  years  ago  the  State  Commissioners  for  Uni- 
formity of  Law  voted  to  adhere  to  the  policy  of  reforming 
divorce  procedure  while  not  attacking  the  causes.  This, 
again,  is  too  vast  a  subject  to  more  than  summarize  here. 
The  causes  of  divorce  vary  and  have  varied  all  the  way  from 
no  divorce  for  any  cause  in  South  Carolina,  for  only  one  cause 
in  New  York  and  other  States,  up  to  twenty  or  thirty  causes, 
with  that  indefinite  or  "omnibus"  clause  of  "mutual  incom- 
patibility," or  allowing  the  courts  to  grant  divorces  in  the 
interest  of  the  general  peace.  Since  the  efforts  of  reformers 
have  wiped  out  the  express-omnibus  clause  from  the  legis- 
lation of  all  States,  the  same  abuse  has  crept  in  under  the 
guise  of  "cruelty";  the  national  divorce  report  before  re- 
ferred to  showing  that  the  courts  of  this  broad  land  have 
held  sufficient  cruelty  to  justify  divorce  (to  the  wife  at  least) 
to  exist  in  tens  of  thousands  of  different  incidents  or  causes, 
ranging  all  the  way  from  attempts  to  murder  ("breaking 
plaintiff's  nose,  fingers,  two  of  her  ribs,  cut  her  face  and 
lip,  chewed  and  bitten  her  ears  and  face,  and  wounded  her 
generally  from  head  to  foot")  to  not  cutting  his  toenails  l 
or  refusing  to  take  the  wife  to  drive  in  a  buggy;  indeed,  one 
young  North  Carolina  woman  got  a  divorce  from  a  man  she 
had  recently  married,  on  the  ground  that  he  was  possessed  of 
great  wealth,  but  she  had  been  assured  that  he  was  an  in- 
valid, and  had  married  him  in  the  hope  and  belief  of  his 
speedy  decease,  instead  of  which  he  proceeded  to  get  cured, 
which  caused  her  great  mental  anguish;  while  one  husband 
at  least  got  a  divorce  for  a  missing  vest  button.2  But,  inde- 

1  Sic:  "  U.  S.  Labor  Commissioners'  Report  on  Marriage  and  Divorce," 
Revised  Edition,  1889,  pp.  174,  175,  176.  2  Ibid.,  p.  177. 


DIVORCE  LEGISLATION  323 

pendent  of  the  vagaries  of  courts  and  judges,  and  perhaps, 
most  of  all,  of  juries  in  such  matters,  it  has  been  found  that 
the  numbers  of  divorces  bear  no  particular  relation  to  the 
number  of  causes.  In  fact,  many  clergymen  argue  that  to 
have  only  one  cause,  adultery,  is  the  worst  law  of  all,  as  it 
drives  the  parties  to  commit  this  sin  when  otherwise  they 
might  attain  the  desired  divorce  by  simple  desertion.  More- 
over, the  difference  in  condition,  education,  religion,  race,  and 
climate  is  so  great  throughout  the  Union  that  it  is  unwise, 
as  well  as  impossible,  to  get  all  of  our  forty-eight  States  to 
take  the  same  view  on  this  subject,  the  Spanish  Catholic  as 
the  Maine  free-thinker,  the  settler  in  wild  and  lonely  re- 
gions as  the  inhabitant  of  the  old  New  England  town  over- 
populated  by  spinsters.  It  was,  therefore,  the  opinion  of 
the  State  Commissioners  that  the  matter  of  causes  was  best 
determined  by  States,  according  to  their  local  conditions, 
and  that  it  would  be  unwise  to  attempt,  even  by  amendment 
to  the  Constitution,  to  enforce  a  national  uniformity.  All 
the  abuses,  substantially,  in  divorce  matters  come  from  pro- 
cedure, from  the  carelessness  of  judges  and  juries,  or,  most 
of  all,  by  laws  permitting  divorce  without  proper  term  of 
residence,  without  proper  notice  to  the  other  side,  or  by 
collusion,  without  proper  defence,  or  for  no  reason  but  the 
obvious  intention  of  contracting  other  marriages.  The  recom- 
mendations of  the  Commissioners  on  Uniformity  will,  there- 
fore, be  found  summarized  below,1  and  there  is  beginning  to 

» AN  ACT  TO  ESTABLISH  A  LAW  UNIFORM  WITH  THE  LAW  OF 
OTHER  STATES  RELATIVE  TO  MIGRATORY  DIVORCE 

Section  1.  No  divorce  shall  be  granted  for  any  cause  arising  prior  to  the 
residence  of  the  complainant  or  defendant  in  this  State,  which  was  not  ground 
for  divorce  in  the  State  where  the  cause  arose. 

Sec.  2.  The  word  "divorce"  in  this  act  shall  be  deemed  to  mean  divorce 
from  the  bond  of  marriage. 

Sec.  3.  All  acts  and  parts  of  acts  inconsistent  herewith  are  hereby  re- 
pealed. 

AN  ACT  TO  ESTABLISH  A  LAW  UNIFORM  WITH  THE  LAWS  OF 
OTHER  STATES  RELATIVE  TO  DIVORCE  PROCEDURE  AND 
DIVORCE  FROM  THE  BONDS  OF  MARRIAGE 

Section  1.  No  person  shall  be  entitled  to  a  divorce  for  any  cause  arising 
in  this  State  who  has  not  had  actual  residence  in  this  State  for  at  least  one 


324  POPULAR  LAW-MAKING 

be  legislation  in  the  direction  of  adopting  these,  or  similar 
statutes.  The  Supreme  Court  has  vindicated,  however,  the 
right  of  the  State  not  to  be  compelled  under  the  full  faith  and 
credit  clause  to  give  effect  to  divorces  improperly  obtained 
in  other  States  by  its  own  citizens  or  against  a  defendant  who 
is  a  citizen.  In  other  words,  a  marriage,  lawful  where  made, 
is  good  everywhere;  not  so  of  a  divorce.  The  fact  that  this 
ruling,  wise  and  proper,  necessarily  results  in  the  possibility 
that  a  person  may  be  married  in  one  State,  divorced  in  an- 
other, and  a  bachelor  in  a  third,  and  bigamous  in  a  fourth, 
lends  but  an  added  variety  to  American  life.  If  the  people 
wish  to  give  the  Federal  government  power  to  make  nation- 
wide marriage  and  divorce  laws,  they  must  do  so  by  con- 
stitutional amendment. 

It  is  always  to  be  remembered  that  the  law  of  marriage, 
and  divorce  as  well,  was  originally  administered  by  the 
church.  Marriage  was  a  sacrament;  it  brought  about  a 
status;  it  was  not  a  mere  secular  contract,  as  is  growing  to 
be  more  and  more  the  modern  view.  Indeed,  the  whole 
matter  of  sexual  relations  was  left  to  the  church,  and  was 

year  next  before  bringing  suit  for  divorce,  with  a  bona-fide  intention  of  mak- 
ing this  State  his  or  her  permanent  home. 

Sec.  2.  No  person  shall  be  entitled  to  a  divorce  for  any  cause  arising 
out  of  this  State  unless  the  complainant  or  defendant  shall  have  resided 
within  this  State  for  at  least  two  years  next  before  bringing  suit  for  divorce, 
with  a  bona-fide  intention  of  making  this  State  his  or  her  permanent  home. 

Sec.  3.  No  person  shall  be  entitled  to  a  divorce  unless  the  defendant 
shall  have  been  personally  served  with  process  if  within  the  State,  or  if  with- 
out the  State,  shall  have  had  personal  notice,  duly  proved  and  appearing  of 
record,  or  shall  have  entered  an  appearance  in  the  case;  but  if  it  shall  ap- 
pear to  the  satisfaction  of  the  court  that  the  complainant  does  not  know  the 
address  nor  the  residence  of  the  defendant  and  has  not  been  able  to  ascer- 
tain either,  after  reasonable  and  due  inquiry  and  search,  continued  for  six 
months  after  suit  brought,  the  court  or  judge  in  vacation  may  author- 
ize notice  by  publication  of  the  pendency  of  the  suit  for  divorce,  to  be  given 
in  manner  provided  by  law. 

Sec.  4.  No  divorce  shall  be  granted  solely  upcn  default  nor  solely  upon 
admissions  by  the  pleadings,  nor  except  upon  hearing  before  the  court  in 
open  session. 

Sec.  5.  After  divorce  either  party  may  marry  again,  but  in  cases  where 
notice  has  been  given  by  publication  only,  and  the  defendant  has  not  ap- 
peared, no  decree  or  judgment  for  divorce  shall  become  final  or  operative 
until  six  months  after  hearing  and  decision. 

Sec.  6.  Wherever  the  word  "divorce"  occurs  in  this  act,  it  shall  be  deemed 
to  mean  divorce  from  the  bond  of  marriage. 

Sec.  7.  All  acts  and  parts  of  acts  Inconsistent  herewith  are  hereby  repealed. 


THE  LAW  AND  THE  AFFECTIONS  325 

consequently  matter  of  sin  and  virtue,  not  of  crime  and  inno- 
cence. Modern  legislation  has,  perhaps,  too  far  departed 
from  this  distinction.  Unquestionably,  many  matters  of 
which  the  State  now  takes  jurisdiction  were  better  left  to  the 
conscience  and  to  the  church,  so  long  as  they  offend  no  third 
party  nor  the  public.  Very  few  lawyers  doubt  that  most 
of  the  causes  of  action  based  on  them,  such  as  the  familiar 
one  for  alienation  of  the  affections,  are  only  of  use  to  the 
blackmailer  and  the  adventurer.  They  are  very  seldom 
availed  of  by  honest  women. 

Nevertheless,  it  is  not  questionable  that  modern  American 
legislation,  particularly  in  the  code  States,  in  California, 
New  York,  and  the  West  generally,  is  based  upon  the  view 
that  marriage  is  a  simple  contract,  whence  results  the  obvious 
corollary  that  it  may  be  dissolved  at  any  time  by  mutual 
consent.  No  State  has  thus  far  followed  the  decision  to  this 
logical  end,  on  the  pretended  assumption  that  the  rights  of 
children  are  concerned;  but  the  rights  of  children  might  as 
well  be  conserved  upon  a  voluntary  divorce  as  after  a  scandal- 
ous court  proceeding.  One  possible  view  is  that  the  church 
should  set  its  own  standard,  and  the  state  its  own  standard, 
even  to  the  extreme  of  not  regulating  the  matter  at  all  except 
by  ordinary  laws  of  contract  and  laws  for  the  record  of  mar- 
riages and  divorces  and  for  the  custody,  guardianship,  sup- 
port, and  education  of  children,  which  would  include  the 
presumption  of  paternity  pending  an  undissolved  marriage, 
but  all  divorces  to  be  by  mutual  consent.  It  is  evident  to 
any  careful  student  of  our  legislation  that  we  would  be 
rapidly  approaching  this  view  but  for  the  conservative  in- 
fluence of  Massachusetts,  Connecticut,  Pennsylvania,  New 
Jersey,  and  the  South,  and  but  for  the  efforts  of  most  of  the 
churches  and  the  divorce  reform  societies.  Which  influence 
will  prove  more  powerful  in  the  end  it  is  not  possible  to 
predict. 

Socialists  urge  that  the  institution  of  marriage  is  bound  up 
with  that  of  private  property.  There  is  little  doubt  that  the 


326  POPULAR  LAW-MAKING 

women's  suffrage  movement  tends  to  socialism,  and,  also, 
paradoxical  as  it  may  at  first  seem,  to  lax  marriage  laws  and 
easy  divorces.  "The  single  standard  of  morality"  offered  by 
all  advanced  women* s-rights  advocates  will  necessarily  be 
a  levelling  down,  not  a  levelling  up ;  and  in  a  society  where 
the  life  of  the  ordinary  young  woman  is  that  which  at  least 
was  that  of  the  ordinary  young  man  about  town,  it  is  hardly 
likely  that  there  will  be  any  stricter  legislation.  Where  a 
majority  of  young  women  live  alone  and  earn  their  living, 
the  old  order  must  change. 

Divorce,  it  should  be  known,  is  a  modern  institution;  that 
is,  divorce  by  the  secular  courts.  Such  divorce  as  the  Ro- 
man Church  recognized,  or  was  granted  by  act  of  Parlia- 
ment, was  the  only  divorce  existing  down  to  the  year  1642, 
when  one  Hannah  Huish  was  divorced  in  Connecticut  by 
the  General  Court,  "with  liberty  to  marry  again  as  God  may 
grant  her  opportunity,"  and  about  that  time  the  Colony  of 
Massachusetts  Bay  enacted  the  first  law  (with  the  possible 
exception  of  one  in  Geneva)  permitting  divorces  by  ordinary 
courts  of  law. 

The  age  of  consent  means  two  things,  or  even  three,  which 
leads  to  much  confusion.  It  has  a  definite  meaning  in  the 
criminal  law,  to  be  discussed  later;  and  then  it  has  a  double 
meaning  in  the  marriage  law.  First,  the  age  under  which 
the  marriage  of  a  girl  or  boy  is  absolutely  void;  second,  the 
age  at  which  it  is  lawful  without  the  consent  of  the  parents. 
The  tendency  of  our  legislation  is  to  raise  the  latter  age  and 
possibly  the  former.  At  least,  marriages  of  very  young  per- 
sons may  be  absolutely  cancelled  as  if  they  had  never  taken 
place.  According  to  all  precedents,  human  and  divine,  from 
the  Garden  of  Eden  to  Romeo  and  Juliet,  "the  age  of  con- 
sent" would  by  common  sense  appear  to  be  the  age  at  which 
the  woman  did  in  fact  consent;  such  is  the  common  law,  but 
such  is  not  usually  law  by  our  statutes. 

But  perhaps  the  legislation  of  the  future  is  best  represented 
by  the  extraordinary  effort,  whose  beginning  we  now  see, 


THE  RIGHT  TO  MARRY  327 

to  prevent  freedom  of  marriage  itself.  There  is  probably 
no  human  liberty,  no  constitutional  right  to  property,  or 
hardly,  even,  to  one's  personal  freedom,  which  has  been 
more  ardently  asserted  by  all  persons  not  actually  slaves 
(and  even,  indeed,  by  them)  than  the  right  to  love  and  marry. 
In  the  rare  instances  where  even  priests  have  interfered, 
it  has  usually  led  to  resentment  or  resistance.  The  common 
law  has  never  dared  to.1  Marriages  between  near  relations, 
prohibited  by  the  Mosaic  law,  were  invalid  by  the  church 
law,  and  became  invalid  by  the  secular  law  at  the  very  late 
period  when  it  began  to  have  any  jurisdiction  over  the 
matter,  hardly  in  England  half  a  century  ago;  in  the  United 
States,  where  we  have  never  had  canon  law  or  church  courts, 
the  secular  law  took  the  Mosaic  law  from  the  time  of  the 
Massachusetts  Body  of  Liberties  (1641).  The  first  inter- 
ference of  statute  was  the  prohibition  of  the  marriage  of  first 
cousins.  This  seems  to  be  increasing.  The  prohibition 
of  marriage  between  different  races  we  have  mentioned  in 
another  chapter.  To-day  we  witness  the  startling  tendency 
for  the  States  to  prescribe  whom  a  person  shall  not  marry, 
even  if  it  do  not  prescribe  whom  they  shall.  The  science  of 
eugenics,  new-fangled  as  the  word  itself,  will  place  upon  the 
statute-book  matters  and  considerations  which  our  forefa- 
thers left  to  the  Lord.  Considerable  progress  has  already 
been  made  in  this  country.  The  marriage  of  insane  persons, 
persons  absolutely  non  compos,  was,  of«course,  always  void  at 
the  common  law,  and  the  church  law  as  well.  They  are  in- 
capable of  contract.  The  marriage  of  impotent  persons  was 
void  also,  but  by  recent  laws  the  marriage  of  epileptics  is  for- 
bidden and  made  void,  the  marriage  of  persons  addicted  to 
intoxicating  liquors  or  drugs,  the  marriage  of  persons  who 
have  been  infected  by  certain  diseases;  and  finally,  most 
startling  of  all,  the  proposal  looms  in  the  future  to  make  every 

1  Mr.  Flinders  Petrie,  in  his  late  book,  "  Janus  in  Modern  Life,"  tells  us  that 
at  least  ten  varieties  of  marriage  and  marriage  law  have  prevailed  in  history, 
and  that  all  save  marriage  by  capture  perdure  in  the  civilized  world  to- 
day, most  of  them,  in  actuality,  even  in  England. 


328  POPULAR  LAW-MAKING 

man  contemplating  a  marriage  submit  himself  to  an  ex- 
amination, both  moral  and  physical,  by  the  State  or  city 
officials  as  to  his  health  and  habits,  and  even  that  of  his  an- 
cestry, as  bearing  upon  his  posterity.  Novels  have  been 
written  about  men  who  avoided  marriage  by  reason  of  a 
taint  of  insanity  in  the  family;  this  modern  science  of  eugenics 
would  propose  to  make  such  conduct  compulsory  by  law. 

We  have  now  said  enough  on  the  abstract  questions  to 
close  with  some  of  the  concrete  examples.  Some  States  forbid 
the  marriage  of  a  person  who  has  tuberculosis;  some  require 
him  to  submit  to  an  examination.  In  1907  a  bill  was  intro- 
duced in  Michigan,  which  provided  that  no  person  should 
be  permitted  to  marry  who  had  ever  led  an  unchaste  life. 
This  bill  did  not,  however,  become  a  law. 

In  divorce  matters  New  York,  in  1890,  adopted  the  very 
intelligent  statute  requiring  courts  to  allow  a  person  charged 
as  corespondent  in  a  divorce  case  to  make  defence.  Six 
States  raised  the  age  of  consent  in  criminal  matters,  and  four 
in  marriage;  one  required  a  marriage  ceremony.  In  1891 
one  State  added  crime,  or  conviction  for  crime,  as  a  cause  of 
divorce,  one  insanity.  Two  regulated  the  procedure  in  the 
direction  recommended  by  the  Uniformity  Commissioners. 
One  made  it  criminal  to  advertise  the  securing  of  divorces 
in  the  newspapers.  Two  States  made  simple  sexual  connec- 
tion a  crime  (which  was  not  a  crime  at  the  common  law). 
One  Southern  State  enacted  a  special  law  against  slander  of 
women, — another  instance  of  the  tendency  to  their  special 
protection.  Several  States  adopted  newer  laws  giving  com- 
plete control  of  their  separate  property  to  women,  and  allow- 
ing them  to  do  business  as  sole  traders,  without  responsibility 
for  the  husband's  debts.  Two  more  States  passed  statutes 
allowing  women  to  practise  law.  In  1890  one  other  State 
forbids  drinks  to  be  served  by  either  women  or  children 
under  eighteen. 

In  1893  there  was  much  legislation  concerning  the  powers 
of  the  mother  over  the  children,  and  the  liability  of  the  hus- 


THE  MARITAL  RELATION  329 

band  to  support  both  wife  and  children  under  penalty  as  for 
the  crime  of  desertion.  This  legislation  has  now  become 
pretty  general  throughout  the  country;  that  is,  it  is  made  a 
criminal  offence  for  a  man  to  desert  his  wife  or  children, 
or,  being  able,  to  fail  to  support  them.  One  State  declared 
the  husband  and  wife  joint  guardians  of  the  children.  In 
1894  one  State  prohibited  marriage  between  first  cousins, 
and  one  between  uncle  and  niece.  One  declared  that  mar- 
riage removed  nonage.  One  made  it  a  misdemeanor  for 
a  married  man  to  make  an  offer  of  marriage.  The  laws 
for  support  of  wife  and  children  continue,  and  there  were 
laws  passed  giving  alimony  to  the  wife,  even  in  case  the 
divorce  were  for  her  fault.  One  State  made  both  husband 
and  wife  competent  witnesses  against  each  other  in  either 
civil  or  criminal  cases.  One  found  it  necessary  to  declare 
that  a  woman  might  practise  medicine,  and  another  that 
she  might  be  a  guardian;  the  statute  in  both  cases  would 
seem  to  have  been  unnecessary.  Two  States  provided  that 
she  might  not  serve  liquor  in  saloons  or  restaurants,  the 
statute  already  referred  to.  Louisiana  adopted  the  intelligent 
statute,  already  mentioned,  permitting  the  right  of  suffrage  to 
women  in  cases  of  votes  on  loans  or  taxes  by  cities,  counties, 
or  towns;  and  Utah  first  enacted  the  much-mooted  statute 
that  female  school-teachers  should  be  paid  like  wages  as 
males  for  the  same  services.  It  would  be  most  interesting 
to  hear  how  this  statute,  which  was  passed  in  1896,  turned 
out  to  work.  *  One  State  provided  that  women  might  be 
masters  in  chancery,  and  another  carried  out  the  idea  of 
equality  by  enacting  that  women  should  no  longer  be  excepted 
in  the  laws  against  tramps  and  vagrants.  Constitutional 
amendments  proposing  women's  suffrage  were  defeated 
this  year  (1895)  in  no  less  than  nine  States.  Connecticut 
passed  a  law  that  no  man  or  woman  should  marry  who  was 
epileptic  or  imbecile,  if  the  wife  be  under  forty-five,  and 
another  State  for  the  first  time  awards  divorce  to  the  husband 

1  A  State  official  informs  me  that  the  law  is  evaded;   see  above,  p.  212. 


330  POPULAR  LAW-MAKING 

for  cruelty  or  indignities  suffered  at  the  hands  of  the  wife, 
while  another  State  still  repeals  altogether  its  law  permitting 
divorces  for  cruelty  or  intoxication.  One  other  makes  in- 
sanity a  cause  of  divorce.  One  other,  non-support.  Two 
or  three  adopt  the  notion  of  joint  guardianship  of  children. 

In  1897  one  State  prohibits  the  remarriage  of  divorced 
parties  during  the  life  of  the  innocent  plaintiff;  the  Uniform- 
ity of  Law  Commissioners  came  to  the  conclusion  that  any 
limitation  upon  remarriage  was  unwise  and  led  both  to 
immorality  and  to  wrong  against  innocent  third  persons. 
Divorces  should  either  not  be  granted  at  all,  or  be  granted 
absolutely.  This  is  the  better  opinion;  though,  of  course, 
it  does  not  apply  to  mere  orders  of  separation.  Much  con- 
fusion of  thought  has  arisen  upon  this  subject,  the  upholders 
of  lax  divorces  always  assuming  that  the  opponents  mean  to 
compel  persons  to  live  together  in  misery  or  incompatibility, 
which,  of  course,  is  far  from  the  case.  A  legal  separation 
has  always  been  permitted,  except,  indeed,  where  that  doc- 
trine is  interfered  with  by  modern  statute;  any  wife  can  be 
freed  of  a  vicious  or  cruel  husband  and  even  compel  him  to 
support  her  while  living  away  from  him,  but  "platform 
women"  are  apt  to  forget  this  fact.  In  the  same  year  one 
Southern  State  has  the  chivalry  to  provide  that  no  women 
should  be  worked  as  convicts  on  the  road;  one  is  not  aware 
but  for  this  that  it  ever  happened.  We  see  more  humane 
legislation  about  this  time  for  the  protection  and  proper 
treatment  of  women  in  jails  or  houses  of  detention,  for  the 
services  of  matrons  and  the  careful  separation  of  the  sexes, 
and  by  now  seats  for  women  in  stores  or  factories  are  almost 
universally  required.  The  sale  of  liquor  to  women  is  in  one 
State  specially  forbidden.  Louisiana  follows  the  Texas  law 
giving  women  tax-payers  a  vote  on  appropriations  for  per- 
manent improvements. 

In  1899  comes  the  law  of  Michigan,  already  referred  to, 
forbidding  persons  with  contagious  diseases  to  marry,  and 
compelling  physicians  to  testify.  The  Massachusetts  Medi- 


EUGENICS  AND  MORALITY  331 

cal  Association  has  gone  on  record  as  urging  that  there  should 
be  a  privilege  to  physicians  in  all  cases,  as  there  is  to  lawyers. 
Many  people  believe  that  to  be  the  common  law;  such  is  not 
the  case,  even  as  to  priests. 

One  more  State  this  year  awards  divorce  for  insanity, 
and  one  more  for  intoxication.  Several  States  permit  women 
to  get  damages  from  liquor-sellers  selling  intoxicating  drink 
to  their  husbands;  I  know  of  no  corresponding  statute  per- 
mitting the  husband  to  get  damages  for  drinks  sold  the  wife. 
A  wife  may  testify  against  the  husband  in  certain  cases,  as 
actions  for  alienating  of  affection,  or  criminal  conversation; 
not  so  the  husband.  Texas  and  other  Southwestern  States 
adopt  the  statute  that  an  action  for  seduction  shall  be  sus- 
pended on  the  defendant's  marriage  with  the  plaintiff, 
otherwise  it  is  a  felony,  and  it  is  again  a  felony  should  he 
after  such  marriage  desert  her — the  Fourteenth  Amendment 
to  the  contrary  notwithstanding  (which  reminds  one  of  the 
colonial  Massachusetts  statute,  that  the  punishment  for  that 
offence  may  either  be  imprisonment  in  the  state-prison, 
or  marriage!). 

The  laws  aimed  at  mere  sin  increase  in  number.  One 
State  makes  improper  relations,  even  by  mutual  consent, 
punishable  with  four  years  in  the  state-prison,  if  the  girl  be 
under  eighteen.  North  Dakota  introduces  a  bill  to  require 
medical  examination  in  all  cases  as  a  prerequisite  to  marriage; 
it  failed  in  North  Dakota  that  year,  but  was  promptly  in- 
troduced in  other  States.  In  Oregon  all  widows  and  fathers 
may  vote,  without  regard  to  property  qualification,  in  school 
district  elections;  and  this  State  joins  the  number  of  those 
which  forbid  the  marriage  of  first  cousins. 

In  1901  came  the  great  New  York  statute  abolishing  the 
common-law  marriage,  which  we  have  discussed  above. 
Some  States  pass  laws  punishing  wife-beating  by  either 
imprisonment  or  a  whipping.  In  1902  perhaps  the  most 
interesting  thing  is  that  there  is  no  legislation  whatever 
of  any  kind  on  the  subject  of  women's  suffrage — showing 


332  POPULAR  LAW-MAKING 

distinctly  the  refluent  wave.  In  1903  New  Hampshire  re- 
jects a  constitutional  amendment  for  women's  suffrage. 
Kansas  restricts  the  marriage  of  epileptic  and  weak-minded 
persons.  Several  States  reform  their  divorce  laws,  and 
Pennsylvania  adopts  Southern  ideas  giving  divorce  for  a 
previous  unchastity  discovered  after  marriage.  This  matter 
has  so  far  been  covered  by  no  Northern  State,  though  it  had 
been  law  from  all  time  in  Virginia. 

In  1904  women's  suffrage  was  proposed  in  Oregon,  and 
in  1905  rejected.  Illinois  follows  New  York  in  abolishing 
the  common-law  marriage,  and  raises  the  age  to  eighteen  in 
a  woman  and  twenty-one  in  a  man.  As  is  often  the  case,  it 
does  not  appear  from  the  ambiguous  wording  of  the  statute 
whether  this  invalidates  the  marriage  or  merely  subjects 
the  offenders,  or  the  minister  or  the  magistrate,  to  a  penalty; 
probably  the  latter.  Minnesota  forbids  the  marriage  of 
imbecile  or  epileptic  persons;  Nebraska  that  of  first  cousins, 
and  Pennsylvania  adopts  the  uniform  divorce  law  recom- 
mended by  the  commissioners.  Five  other  States  reform 
their  divorce  laws,  and  four  their  laws  concerning  married 
women's  property,  and  seventeen  adopt  new  laws  for  com- 
pulsory support  of  the  woman  and  children  by  the  husband. 

In  1906  one  more  State  adopts  the  idea  of  giving  a  vote 
to  female  property-owners  in  money  elections.  One  puts 
the  age  of  consent  up  to  sixteen.  In  a  good  many  States 
it  is  already  eighteen.  Women's  suffrage  is  again  rejected 
in  Oregon;  and  finally  even  South  Dakota  reforms  her 
divorce  laws. 

Perhaps  a  word  should  be  given  to  other  laws  relating 
to  minors  as  well  as  to  young  women.  There  is  very  general 
legislation  throughout  the  country  forbidding  the  sale  of 
intoxicating  liquor  to  persons  under  twenty-one,  and  in  the 
great  majority  of  the  States  the  sale  of  cigarettes,  narcotics 
or  other  drugs,  or  even  tobacco,  to  persons  under  twenty- 
one,  eighteen,  or  fifteen,  respectively.  In  some  States  it  is 
forbidden,  or  made  a  misdemeanor,  to  insure  the  lives  of 


RECENT   LEGISLATION   ON   FAMILY  MATTERS     333 

children— very  important  legislation,  if  necessary.  In  1904 
Virginia  passed  a  statute  punishing  kidnapping  with  death, 
which  is  followed  in  1905  by  heavy  penalties  for  abduction 
in  three  other  States;  fourteen  States  establish  juvenile 
courts.  Seven  States  make  voluntary  cohabitation  a  crime, 
and  six  pass  what  are  known  as  curfew  laws.  Indeed,  it  may 
be  generally  said  that  the  tendency  is,  either  by  State  statute 
or  municipal  ordinance,  to  forbid  children,  or  at  least  girls 
under  sixteen,  from  being  unattended  on  the  streets  of  a  city 
after  a  certain  hour  in  the  evening. 

In  1907  Mississippi  makes  the  age  of  consent  twelve,  and 
the  penalty  for  rape  death,  which,  indeed,  is  the  common  law, 
but  which  law  has  extraordinary  consequences  when  the  age 
is  raised,  as  it  is  in  many  States,  to  eighteen.  Two  more 
States  adopt  the  laws  against  abduction  and  one  a  statute 
against  blackmail. 

Sufficient  has,  perhaps,  been  said  to  give  the  reader  a  gen- 
eral view  of  contemporary  law-making  on  this  most  important 
matter  of  personal  relations.  Most  of  the  matters  mentioned 
in  this  chapter  are  covered  by  various  learned  societies  in 
annual  reports,  or  even  by  the  government,  in  cases  of 
marriage  and  divorce,  and  to  such  special  treatises  the  reader 
may  be  referred  for  more  precise  information.  The  Special 
Report  of  the  United  States  Census  Office,  1909,  published 
early  in  1910,  makes  a  careful  and  elaborate  study  of  the  whole 
question  from  the  years  1867  to  1906.  Such  statistics  are 
necessarily  uncertain  for  reasons  already  indicated.  Court 
judgments  do  not  indicate  the  true  cause  of  divorce,  nor  is 
the  complainant  necessarily  the  innocent  party,  nor  are  the 
numbers  of  divorces  granted,  as  for  instance  in  Nevada, 
any  fair  indication  of  the  normal  divorce  rate  of  the  people 
really  living  in  that  State.  With  this  caution  we  will  note 
that  the  number  of  divorces  varied  from  about  five  hundred 
in  each  hundred  thousand  of  married  population  every  year  in 
Washington,  Montana,  Colorado,  Arkansas,  Texas,  Oregon, 
Wyoming,  Indiana,  Idaho,  and  Oklahoma,  down  to  less  than 


334  POPULAR  LAW-MAKING 

fifty,  or  about  one-tenth  as  many,  in  New  Jersey,  New  York, 
and  Delaware.  Certain  significant  observations  may  cer- 
tainly be  made  upon  this  table.  In  the  first  place,  the  older 
States,  the  old  thirteen,  have,  from  the  point  of  view  of  the 
conservative  or  divorce  reformer,  the  best  record.  At  the 
head  stand  the  three  States  just  named,  then  North  Carolina, 
Georgia,  Pennsylvania,  Maryland,  Virginia,  Massachusetts, 
Louisiana  (largely  French  and  Roman  Catholic),  and  Con- 
necticut— ten  of  the  original  thirteen  States.  Only  New 
Hampshire  and  Rhode  Island,  the  latter  for  obvious  reasons, 
stand  low  down  in  the  column;  the  last  State  having  about 
three  hundred  divorces  as  against  Montana's  five  hundred. 
South  Carolina,  having  no  divorces  at  all,  does  not  appear. 

The  next  observation  one  is  compelled  to  make  is  that 
divorces  are  most  numerous  in  the  women's  suffrage  States, 
or  in  the  States  neighboring,  where  "women's  rights"  notions 
are  most  prevalent.  Montana,  Colorado,  Wyoming,  and 
Idaho  stand  second,  third,  sixth,  and  eighth,  respectively, 
among  the  fifty  States  and  Territories  comprised  in  the  table.1 
On  succeeding  pages  are  graphic  maps  showing  the  conditions 
which  in  this  particular  prevail  for  a  number  of  years.  There 
is  little  change  of  these  in  the  thirty  years  from  1870  to 
1900.  The  Atlantic  seaboard  and  Southern  States  in  1870 
are  left  white,  with  the  exception  of  New  England,  which 
is  slightly  shaded;  that  is,  they  have  less  than  twenty-five 
divorces  per  hundred  thousand  of  inhabitants.  In  1880 
the  black  belt  States  and  Territories — having  one  hundred 
and  over — extends  from  Wyoming  over  Montana,  Colorado, 
Utah,  and  Nevada.  In  1900  it  covers  the  entire  far  West 
and  Southwest,  with  the  exception  of  New  Mexico  (Roman 
Catholic)  and  Utah  (Mormon).  The  chart  showing  the 
relation  of  divorces  to  number  of  married  population  does  not 
materially  differ.  Now  these  figures,  ranging  from  five  hun- 
dred divorces  per  hundred  thousand  married  population  per 
year,  or  three  hundred  in  the  more  lax  States,  down  to  less 
i  Census  Reports,  1909,  "  Marriage  and  Divorce,"  part  I,  p.  15. 


DIVORCE  THROUGHOUT  THE  WORLD  335 

than  fifty  in  the  stricter  States,  compare  with  other  countries 
as  follows: 

Only  Japan  shows  a  number  of  divorces  approaching  these 
figures.  She  has  two  hundred  and  fifteen  per  one  hundred 
thousand  of  general  population, — about  the  same  as  Indiana, 
which  stands  eighth  in  the  order  of  States.  But  with  the 
exception  of  Japan  no  civilized  country  shows  anything 
like  the  proportion  of  divorces  that  the  American  States  do. 
Thus,  in  Great  Britain  and  Ireland  there  are  but  two  per 
hundred  thousand  of  population;  in  Scotland,  four;  in  the 
German  Empire,  fifteen;  in  France,  twenty- three,  and  in  the 
highest  country  of  all,  Switzerland,  thirty-two,  while  the  aver- 
age of  the  entire  United  States  is  seventy-three. 

The  census  figures  as  to  the  trades  or  professions  in  which 
divorce  is  most  prevalent  are  amusing,  but  probably  not  very 
significant.  It  appears,  as  might  be  expected,  that  actors 
and  actresses  stand  at  the  head,  and  next  musicians  or  teach- 
ers of  music;  while  clergymen  stand  very  near  the  bottom  of 
the  list,  only  excelled  in  this  good  record  by  bar-tenders 
(in  Rhode  Island)  and,  throughout  the  country,  by  agricult- 
ural laborers. 

But  after  all,  more  important,  perhaps,  than  even  marriage 
and  divorce,  are  the  great  social  changes  which  arise  from 
the  general  engaging  of  women  in  industrial  occupation.  In 
matters  of  property  right  we  have  found  they  are  substan- 
tially already  on  an  equality  with  men,  if  not  in  a  position 
of  special  privilege.  Yet,  as  Herbert  Spencer  remarked, 
"When  an  abuse  which  has  existed  for  many  centuries  is  at 
last  on  the  point  of  disappearing,  the  most  violent  outcry 
is  made  against  it.*'  During  the  century  when  women  were 
really  oppressed,1  under  the  power  of  the  husband,  given  no 
rights  as  to  their  property,  their  children,  or  hardly  even 
as  to  their  person,  no  complaint  was  heard.  Whereas  to-day 

»  In  the  trial  of  Mary  Moders  for  bigamy  (2  State  Trials,  498)  as  late  as 
1663  the  chief  justice  said,  "  If  guilty,  she  must  die;  a  woman  hath  no  clergy." 
Yet  Mary  wrote  to  her  husband,  in  court,  "Nay,  my  lord,  'tis  not  amiss, 
before  we  part,  to  have  a  kiss!'  She  was  acquitted. 


336  POPULAR  LAW-MAKING 

the  cry  of  unjust  legislation  almost  rises  to  a  shriek.  The 
movement  for  the  emancipation  of  women  originated,  of 
course,  with  Mary  Wolstonecraft,  about  1812.  Her  book, 
which  was  the  first,  is  certainly  one  of  the  longest  that  have 
yet  been  written  on  the  subject.  It  remained  at  the  time 
unanswered,  and  when  its  author  married  Godwin  she  her- 
self seems  to  have  lost  interest  in  the  controversy.  Never- 
theless, little  has  been  added  since  to  the  ideas  there  put 
forward,  save,  indeed,  for  the  vote.  It  is  a  somewhat  curi- 
ous fact  that  in  all  Miss  Wolstonecraft's  great  magazine  of 
grievances  and  demands  for  remedying  legislation,  there  is 
not  a  single  word  said  about  votes  by  women,  or  there  being 
such  a  thing  as  the  right  to  the  ballot. 

The  industrial  condition  of  the  sex  in  American  cities  may 
be  summed  up  with  the  general  phrase  "absolute  equality 
of  opportunity,"  with  a  certain  amount  of  special  protection. 
Women  are  nearly  universally  required  to  be  given  seats  in 
factories  and  stores,  and  the  laws  specially  protecting  their 
periods  of  employment  have  just  been  sustained  as  constitu- 
tional in  the  States  of  Illinois  and  Oregon  and  the  Supreme 
Court  of  the  United  States.  On  the  other  hand,  we  are  far 
behind  European  countries  in  legislation  to  protect  their 
health  or  sanitary  conditions.  The  most  radical  effort  at 
legislation  ever  made  was  undoubtedly  that  Connecticut 
bill  forbidding  employment  of  married  women  in  factories, 
which,  however,  did  not  become  a  law.  The  recent  reports 
of  Laura  Scott  to  the  American  Association  for  Labor 
Legislation,  on  Child  Labor,  1910,  and  the  Employment 
of  Women,  1909,  have  already  been  referred  to.  From 
the  former,  which  appeared  as  we  are  going  to  press,  we 
learn  that  there  are  prohibited  occupations  to  children  in  all 
the  States  without  exception — a  statement  which  certainly 
would  not  have  been  true  some  years  since.  These  prohibited 
groups  of  employment  are  generally,  to  male  and  female,  dan- 
gerous machinery  and  mines,  and  to  females  also  saloons; 
and  there  is  nearly  universally  a  limitation  of  all  labor  to 


WOMEN   IN    INDUSTRY  337 

above  the  age  of  twelve  or  fourteen  for  all  purposes,  and 
to  above  fourteen  or  sixteen  for  educational  purposes,  besides 
which  there  is  a  very  general  prohibition  of  acrobatic  or 
theatrical  performances.  Girls  are  sometimes  forbidden  to 
sell  newspapers  or  deliver  messages  for  telegraph  companies 
or  others.  Compulsory  education  is,  of  course,  universal, 
and  the  machinery  to  bring  it  about  is  generally  based  upon 
a  system  of  certificates  or  cards,  with  truant  officers  and 
factory  inspectors. 

According  to  the  encyclopaedias,  some  five  hundred  thou- 
sand women  were  employed  in  England  about  twenty  years 
ago,  of  whom  about  three  hundred  thousand  were  in  the  textile 
mills.  In  Massachusetts  alone  there  were  two  hundred  and 
eight  thousand  women  employed,  according  to  the  last  State 
census.  Neither  of  these  figures  include  the  vast  class  (of 
domestic  service  and  farm  labor.  The  inclusion  of  this 
would  swell  the  proportion  of  adult  women  employed  in  gain- 
ful occupations  to  at  least  one  in  four,  if  not  one  in  three. 
Congress  itself  has  recently  been  investigating  the  question 
whether  "home  life  has  been  threatened,  marriage  decreased, 
divorce  increased  out  of  all  proportion,  and  the  birth  rate 
now  barely  exceeds  the  death  rate,  so  that  the  economic 
and  social  welfare  of  the  country  is  menaced  by  this  army  of 
female  wage  earners"  (see  Boston  Herald,  April  2,  1908). 
It  appeared  that  in  1900  one  million  seven  hundred  and  fifty 
thousand  children  were  at  work  between  the  ages  of  ten  and 
fifteen,  of  whom  five  hundred  thousand  were  girls.  This  and 
other  considerations  have  led  to  the  movement  for  national 
child-labor  laws  already  discussed. 

Perhaps  the  most  dangerous  tendency,  at  least  to  conserva- 
tive ideas,  is  the  increasing  one  to  take  the  children  away  from 
the  custody  of  the  parents,  or  even  of  the  mother,  and  place 
them  in  State  institutions.  Indeed,  in  some  Western  States 
it  would  appear  that  the  general  disapproval  of  the  neighbors 
of  the  method  employed  by  parents  in  bringing  up,  nurturing, 
educating,  or  controlling  their  children,  is  sufficient  cause 


338  POPULAR  LAW-MAKING 

for  the  State  authorities  to  step  in  and  disrupt  the  family 
by  removing  the  children,  even  when  themselves  unwilling, 
from  the  home  to  some  State  or  county  institution.  Any  one 
who  has  worked  much  in  public  charities  and  had  experience 
with  that  woeful  creature,  the  institutionalized  child,  will 
realize  the  menace  contained  in  such  legislation. 

Finally,  it  should  be  remembered  that  throughout  the  United 
States  men  are  universally  liable  for  their  wives'  debts,  short 
of  some  quasi-legal  separation;  on  the  other  hand,  wives  are 
never  liable  for  the  debts  of  their  husbands. 


XVIII 
CRIMINAL  LAW  AND  POLICE 

There  is  no  very  general  tendency  toward  new  legislation 
in  matters  of  felony,  and  many  States  are  still  content  to 
remain  with  the  common  law.  Such  legislation  as  there  is 
is  mainly  concerned  with  the  protection  of  women  and  chil- 
dren, alluded  to  in  the  last  chapter.  In  matters  of  less  seri- 
ous offences,  of  legislation  creating  misdemeanors  or  merely 
declaring  certain  acts  unlawful,  there  are  three  main  lines: 
First,  legislation  usually  expressive  of  the  common  law  against 
conspiracies  of  all  sorts,  combinations  both  of  individuals 
and  of  capital,  already  fully  discussed.  Next,  the  general 
line  of  legislation  in  the  interest  of  the  health  of  the  public, 
such  as  pure  food  and  drug  laws,  and  examination  for  trade 
or  professional  licenses;  and  finally  laws  protecting  the 
individual  against  himself,  such  as  liquor  and  anti-cigarette 
or  anti-cocaine  laws.  It  is  hardly  necessary  to  more  than 
illustrate  some  of  these  matters.  Then  there  are  the  laws 
regulating  punishment  for  crime,  laws  for  probation  or  pa- 
role, indeterminate  sentences,  etc.,  all  based  on  the  modern 
theory  that  reform,  not  retribution  or  even  prevention,  is  the 
basis  of  penology.  Such  laws  have  been  held  constitutional, 
even  when  their  result  is  to  arbitrarily  increase  a  man's 
sentence  for  crime  on  account  of  his  past  or  subsequent 
conduct.  Finally,  and  most  important,  there  is  the  legisla- 
tion regulating  the  actual  trial  of  cases,  indictments,  juries, 
appeals, — the  law  of  court  procedure,  civil  as  well  as  criminal, 
which  for  convenience  we  may  consider  in  this  chapter. 

Of  the  first  sort  of  legislation,  we  have  noted  that  in  many 
States  adultery,  in  many  States  simple  drunkenness,  in  other 

339 


340  POPULAR  LAW-MAKING 

States  mere  single  acts  of  immorality,  are  made  felonies. 
In  1892  the  State  laws  against  food  adulteration  begin,  which, 
by  1910,  have  covered  milk,  butter,  maple  sugar,  and  many 
other  subjects.  By  the  Federal  pure-food  law  of  1906,  apply- 
ing to  interstate  commerce  in  such  articles,  it  became  ad- 
visable for  the  States  to  adopt  the  Federal  Act  as  a  State 
law;  also  for  the  sake  of  uniformity  a  few  States  have  had 
the  intelligence  to  do  so.  The  trades  of  fat-rendering  and 
bone-boiling  are  made  nuisances  by  statute. 

In  1896  we  note  the  first  statutes  against  lynching.  In 
1897  local  option  prevails  in  Texas,  and  the  blue  laws  of 
Connecticut  are  abolished  to  the  extent  that  recreation  on 
Sundays  is  no  longer  prohibited.  Local  option  and  anti- 
lynching  laws  continue  during  the  next  two  or  three  years, 
and  by  1900  twenty-four  States  have  pure-food  laws,  which, 
however,  are  ineffective  because  they  impose  no  sufficient 
penalty.  In  1903,  in  consequence  of  the  assassination  of 
President  McKinley,  Washington  and  Wisconsin  make  the 
advocating  anarchy  a  felony.  Twenty-one  more  States  pass 
pure-food  laws,  and  nearly  all  the  States  have  gone  over 
to  local  option  from  State-wide  prohibition,  to  which  latter 
principle  only  three  States  now  adhere.  In  1904  Mississippi 
and  Virginia  adopt  more  stringent  laws  against  vagrancy, 
and  1905  is  the  year  of  active  legislation  on  the  indetermi- 
nate sentence,  juvenile  courts,  parole  and  probation,  with 
two  more  statutes  against  mobs  and  lynching.  In  1907  the 
States  are  busied  with  the  attempt  to  enforce  their  prohibi- 
tion regulations  against  the  interstate  commerce  jurisdiction 
of  the  Federal  government.  Solicitation  of  interstate  orders 
for  liquor  is  forbidden  in  Mississippi,  and  it  is  provided 
that  shipments  sent  C.  O.  D.  are  not  to  be  moved  one  hun- 
dred feet  or  given  away;  also,  that  the  mere  possession  of  an  in- 
ternal revenue  receipt  from  the  United  States  government  is 
prima  facie  evidence  of  an  offence  against  the  State  law. 
Statutes  of  this  kind  led  to  renewed  conflict  between  State 
and  Federal  authority.  Virginia  adopts  the  statute  against 


CRIMINAL  PROCEDURE  341 

giving  tips  or  any  commissions;  see  p.  244  above.  In  1908 
we  find  more  parole  and  probation  laws,  two  prohibition  and 
three  local-option  laws,  and  four  new  pure-food  statutes. 

Coming  to  matters  of  court  procedure,  in  1890  one  State 
provides  that  there  should  never  be  called  more  than  six 
witnesses  for  each  side  in  any  criminal  case,  which  oddly 
reminds  one  of  early  English  trials  by  computation ;  but  is, 
of  course,  quite  unconstitutional  in  this  country.  In  1893 
Connecticut  adopts  a  statute  that  honorably  discharged  sol- 
diers and  sailors  addicted  to  drink  are  to  be  "treated"  free 
at  the  State  hospital.  The  definition  of  the  word  "treated" 
seems  ambiguous,  but  in  any  event  it  is  a  pleasing  reminder 
of  Bishop  Berkeley's  remark  that  he  would  "rather  see 
England  free  than  England  sober."  Some  States  provide 
for  a  jury  of  eight  in  criminal  cases  and  for  a  verdict  of 
three-quarters  in  civil  cases — a  statute  of  questionable  con- 
stitutionality. Very  generally  throughout  the  twenty  years 
studied  by  us,  the  States  have  adopted  stricter  rules  for  the 
admission  of  attorneys  at  law  to  practise  at  the  bar. 

In  1895  Pennsylvania  yields  to  the  physicians  and  passes 
a  statute  forbidding  them  to  disclose  communications  of 
patients,  but  the  statute  only  applies  to  civil  cases.  More 
States  provide  for  verdicts  by  a  majority  of  the  jury.  Mary- 
land goes  Pennsylvania  one  better  in  extending  the  pro- 
fessional privilege  to  newspaper  reporters;  that  is  to  say, 
we  find  a  statute  that  they  may  not  be  compelled  to  disclose 
their  sources  of  information,  an  excellent  statute  for  the  yellow 
journal.  In  1897  California  abolishes  capital  punishment; 
there  has  been  a  general  tendency  in  this  direction,  of  recent 
years,  although  some  States,  having  tried  the  experiment, 
have  returned  to  it  again,  as  has  the  Republic  of  France.  In 
1899  the  privilege  from  testifying  is  extended  in  one  State 
also  to  trained  nurses,  and  in  others  to  physicians,  even  in 
criminal  cases,  although  they  may  testify  with  the  patient's 
consent.  The  same  law  was  adopted  in  Iowa  in  1900.  Ohio 
does  away  with  the  common  law  of  libel,  except  the  plain- 


342  POPULAR  LAW-MAKING 

tiff  can  prove  actual  malice.  By  this  year,  seventeen  States 
expressly  allow  women  to  practise  law,  and  twenty-eight 
do  so  by  implication.  The  Colorado  statute  for  a  three- 
fourths  verdict  is  held  unconstitutional. 

The  regulation  of  the  liquor  traffic  is,  perhaps,  after  the 
labor  question,  the  most  universal  subject  of  legislation  in  oc- 
cidental nations.  Experts  on  the  matter  tell  us  (E.  L.  Fan- 
shawe,  "Liquor  Legislation  in  the  United  States  and  Can- 
ada," Report  to  Parliament,  1892)  that  there  have  hitherto 
been  but  three,  or  possibly  four,  inventions — universal  or 
State-wide  prohibition,  local  option,  license,  high  or  low,  and 
State  administration.  The  last  was  recently  tried  in  South 
Carolina  with  more  or  less  success.  Prohibition  by  a  general 
law  does  not  seem  to  be  effective;  local  option,  on  the  contrary, 
does  seem  to  be  so.  But  the  general  consensus  of  opinion,  to 
which  Mr.  Fanshawe  comes,  and  which  seems  still  to  be  held 
by  most  intelligent  American  publicists,  is  that  on  the  whole 
high  license  works  best,  and  this  the  women  themselves 
have  just  voted  in  Denver;  not  only  because  it  actually  pro- 
hibits to  a  certain  extent,  but  it  regulates  and  polices  the 
traffic,  prevents  the  sale  of  adulterated  liquor,  and  to  a  con- 
siderable extent  the  grosser  disorders  and  political  dangers 
that  attend  the  bar-room.  On  the  other  hand,  the  power  of 
licensing  should  never  be  granted  to  any  political  body,  but 
should  be  granted  under  fixed  rules  (determined  by  geo- 
graphical position  and  the  local  opposition  or  desire)  by  the 
local  government.  These  rules  should  not  be  arbitrary,  and 
the  person  applying  for  license  should  have  the  right  to  appeal 
to  some  court. 

Matters  of  bribery  and  political  corruption  have  been 
somewhat  anticipated  under  Chapter  14.  Suffice  it  here 
to  say  that  the  States  very  generally  have  been  adopting 
statutes  making  bribery  criminal  and  a  cause  of  permanent 
disqualification  from  all  political  right,  either  voting  or 
holding  office,  and  this  applies  both  to  the  person  bribing 
and  the  person  receiving  the  bribe.  Bribery  by  offers  or 


POLICE  AND  MORALITY  343 

promise  of  employment  is  a  far  more  difficult  matter,  but  this 
matter  also  certain  States  have  sought  to  regulate. 

There  are,  of  course,  thousands  and  thousands  of  city  ordi- 
nances relating  to  the  criminal  law,  but  usually  to  minor  of- 
fences or  matters  of  police  regulation.  Undoubtedly  the 
duplication  of  them  tends  to  make  us  not  a  law-abiding  com- 
munity. It  was  the  present  Boston  police  commissioner  who 
complained  that  there  were  more  than  eleven  thousand  ordi- 
nances in  Boston,  which  everybody  was  supposed  to  know. 
We  must  let  the  whole  matter  go  by  saying  that  there  is  a 
general  attempt  at  universal  police  regulation  of  all  the  actions 
of  life,  at  least  such  as  are  conducted  outside  of  a  man's  own 
house.  Sunday  laws,  Sabbatarian  legislation,  have,  of  course, 
very  largely  been  abandoned,  except  when  restored  in  the 
interest,  or  supposed  interest,  of  labor.  In  the  State  of 
New  York,  for  instance,  barbers  could  only  shave  on  Sunday 
in  the  city  of  New  York  and  the  town  of  Saratoga;  the 
reasons  for  the  exception  are  obvious. 

Coming  to  general  principles  of  penology,  there  is  no  doubt 
that  of  the  three  possible  theories,  revenge,  prevention,  and 
reform  of  the  criminal,  it  is  the  latter  that  in  the  main  pre- 
vails throughout  the  United  States.  An  investigation  was 
conducted  some  years  since  by  correspondence  with  a  vast 
number  of  judges  throughout  the  world,  and  it  proved  that 
this  was  also  their  principle  of  imposing  sentences,  in  the 
majority  of  cases.  More  radical  change  is  found  in  that  legis- 
lation freeing  prisoners  on  parole,  providing  indeterminate 
sentences,  and  in  the  creation  of  special  courts  for  boys  and 
young  women,  with  special  gaols  and  reformatories.  Jury 
trial,  of  course,  remains  substantially  unchanged  from  the 
earlier  times,  only  that  the  jurors  are  now  in  most  States 
permitted  to  read  or  to  have  read  the  newspapers,  and  that 
the  government  has  a  right  of  appeal  when  the  verdict  has  gone 
for  the  prisoner  on  a  point  of  law.  This  matter,  upon  Presi- 
dent Roosevelt's  recommendation,  was  embodied  in  an  act 
of  Congress. 


344  POPULAR  LAW-MAKING 

The  legislation  making  it  criminal  to  advocate  assassination 
or  anarchism  has  been  adverted  to  when  we  were  considering 
the  rights  of  aliens.  In  England,  it  is  treason  to  imagine  the 
death  of  the  king.  There  is  no  constitutional  reason  why 
it  should  not  be  treason  to  imagine  the  death  of  the  president, 
or  perhaps  even  the  subversion  by  force  of  organized  society. 
Such  laws  have  been  passed  in  Washington,  Wisconsin,  and 
other  States. 

It  has,  in  some  States,  been  made  a  capital  offence  to  kid- 
nap a  child,  and,  as  has  been  elsewhere  said,  the  rigor  of  the 
common  law  is  very  generally  preserved  for  the  crime  of 
rape.  The  most  active  effort  to-day  for  legislation  in  matters 
quasi-criminal  is  that  to  extend  jury  trial  over  cases  of  con- 
tempt of  court,  particularly  when  in  violation  of  a  chancery 
injunction  when  the  act  itself  is  criminal.  The  greatest 
need  of  criminal  legislation  is  in  the  writer's  opinion  in  mat- 
ters of  business  or  corporate  fraud,  and  in  revival  of  our 
older  English  law  against  the  extortion  or  regrating  of  mid- 
dlemen, the  engrossing  of  markets,  the  artificial  enhancing 
of  the  prices  of  the  necessaries  of  life,  and  the  withholding, 
destruction,  or  improper  preservation  of  food.  But  most  of 
all,  as  President  Taft  has  urged,  greater  speed  and  certainty 
and  less  technicality  in  court  trials  for  crime — a  reform  of  our 
legal  procedure. 


XIX 

OF  THE  GOVERNMENTAL  FUNCTION,  INTER- 
NAL IMPROVEMENTS,  AND  THE  PUBLIC 
DOMAIN 

The  matter  of  most  interest  in  modern  American  legislation 
for  municipal  government  is  probably  the  home-rule  principle. 
That  is,  statutes  permitting  cities  or  towns,  or  even  villages, 
to  draw  and  adopt  their  own  charters  and  govern  themselves 
in  their  own  way.  The  charter  thus  adopted  may,  of  course, 
be  the  old-fashioned  government  of  mayor,  aldermen,  com- 
mon council,  etc.,  or  it  may  be  the  newly  invented  govern- 
ment by  commission,  based  substantially  on  the  theory  of 
permanent  officials  chosen  at  infrequent  intervals,  and 
officers,  in  so  far  as  possible,  appointed,  and  not  elected. 
The  one  makes  for  efficiency,  the  other  for  democracy. 
At  present  the  American  people  seem  to  have  a  craze  for 
efficiency,  even  at  the  expense  of  representative  government, 
and  of  principles  hitherto  thought  constitutional.  It  is  im- 
possible to  tell  how  long  it  will  last.  It  may  carry  us  into 
the  extreme  of  personal  government,  national,  State,  and 
local,  or  history  may  repeat  itself  and  we  may  return  to  the 
principle  of  frequent  elections  and  direct  responsibility  to 
the  voters  under  the  arbitrament  of  the  courts  of  law.  We 
may  go  on  to  special  courts  (declared  odious  in  the  Great 
Case  of  Monopolies)  and  administrative  law,  or  be  content 
with  improved  understanding  of  the  law  we  already  have. 

These  matters  are  too  large  for  us;  coming  down  to  more 
concrete  facts,  we  find  that  the  general  tendencies  of  legisla- 
tion upon  State,  and  particularly  municipal,  government  are 
to  somewhat  enlarge  its  functions,  but  considerably  to  limit 

345 


346  POPULAR  LAW-MAKING 

its  expenditure.  Greater  distrust  is  shown  in  legislatures, 
municipal  as  well  as  State,  and  a  greater  trust  and  power 
reposed  in  individual  heads,  and  a  much  greater  power  in- 
trusted to  more  or  less  permanent  boards  and  commissions, 
usually  not  elective,  and  often  clothed  with  vast  powers 
not  expressly  submitted  to  the  scrutiny  of  courts  of  law. 
The  purposes  of  education  are  somewhat  extended,  generally 
in  the  direction  of  better  education,  more  technical  and 
practical  and  less  "  classical."  l  Charity  includes  a  largely 
increased  recreation  for  the  people,  State  provision  for  many 
more  classes  of  the  invalid  and  incompetent,  specialized 
homes  for  various  sorts  of  infirm  or  inebriate,  and  some  little 
charity  in  the  guise  of  bounties  of  seed,  etc.,  to  needy  farmers, 
which  latter,  however,  have  usually  been  held  unconstitutional. 
Thus,  in  1890  North  Dakota  limits  the  debt  of  cities  to  five 
per  cent.;  but  permits  county  loans  to  raise  seed  grain  for 
needy  farmers;  other  States  extend  the  principle  of  socialism 
to  electric  lighting,  gas,  natural  gas,  water,  sewers,  agricultural 
drainage,  irrigation,  turnpikes,  and  cemeteries.  That  is  to 
say,  all  may  be  built,  maintained,  or  run  at  the  municipal 
expense,  or  under  municipal  control.  In  1895  Wisconsin, 
North  Carolina,  Texas,  and  other  States  carefully  limit 
State,  county,  town,  or  city  taxes  to  prescribed  rates.  Texas 
requires  a  two-thirds  vote  on  the  issue  of  municipal  bonds, 
and  fixes  the  debt  limit  at  five  per  cent.  In  1896  Missouri  re- 
jects a  constitutional  amendment  permitting  municipal  gas 
and  water  socialism  on  majority  vote  of  the  voters.  The  same 
year  the  failure  of  such  enterprises  begins  to  show  itself 
in  a  statute  of  Iowa  authorizing  municipal  plants  to  be  sold 
upon  a  popular  vote.  The  socialist  town  of  Hamilton,  Ohio, 
actually  went  into  the  hands  of  a  receiver;  a  similar  result 
followed  the  English  experiments  in  the  towns  of  Poplar 
and  West  Ham. 

1  Though  a  lady  orator  in  Boston  this  year  complains  to  an  audience  of 
labor  unionists  that  trades  schools  and  industrial  education  tend  to  "  peas- 
antize"  the  poor.  Peasanthood  was  the  condition  of  the  agricultural  laborer; 
it  was  skil  ed  labor  that  made  him  free— neither  peasant,  peon,  nor  villein. 
See  p.  20,  above. 


GOVERNMENT  BY  COMMISSION  347 

In  1897  many  other  States  adopted  a  limit  for  State,  city, 
county,  or  town  taxes.  Indeed,  it  may  be  stated  generally, 
without  going  into  further  details,  that  such  laws  are  practi- 
cally universal  throughout  the  South  and  West,  and  prevail 
to  some  extent  as  to  cities  only  in  New  England,  and  the  same 
may  be  said  of  laws  fixing  a  debt  limit  which  States,  counties, 
cities,  or  towns  may  not  exceed.  Such  laws  are  very  gene- 
rally evaded,  as  by  leasing  desired  improvements  of  a  private 
company,  or  (in  Indiana  at  least)  the  overlapping  of  munic- 
ipal districts;  thus  there  may  be  (as  formerly  in  England) 
city,  town,  school  district  or  poor  district,  each  separate  and 
not  conterminous. 

While  it  is  obvious  that  municipal  socialism  has  rather 
decreased  in  the  last  ten  years,  laws  restricting  the  grant- 
ing of  franchises  have  become  far  more  intelligent  and  are 
being  generally  adopted.  The  best  example  of  such  legis- 
lation is  probably  to  be  found  in  Kansas.  The  general 
principles  are  that  no  franchise  can  be  given  but  for  a 
limited  time,  that  it  must  be  bought  at  public  auction, 
that  the  earnings  beyond  a  certain  percentage  on  invest- 
ment must  revert  to  the  city,  and  that  there  must  be  a 
referendum  to  popular  vote  in  the  locality  interested.  In 
1899  Michigan  declares  the  municipal  ownership  of  street 
railways  unconstitutional,  but  Nevada  passes  a  statute  for 
municipal  ownership  of  telephone  lines.  In  1903  the  munic- 
ipal ownership  of  gas  and  oil  wells  is  permitted  in  Kan- 
sas, and  of  coal  or  fuel  yards  in  Maine.  A  law  similar 
to  the  latter  was  declared  unconstitutional  by  the  Massachu- 
setts Supreme  Court.  Missouri  adopts  a  sweeping  statute 
for  the  municipal  ownership  of  "any  public  utilities"  in  cities 
of  less  than  thirty  thousand  population.  In  1904  Louisiana 
permits  small  towns  to  own  and  operate  street  railways. 
Other  States  copy  the  Missouri  statute  as  to  municipal 
ownership  of  all  or  any  public  utilities,  and  generally  the 
principle  is  extended,  but  only  in  a  permissive  way;  that  is 
to  say,  upon  majority  vote,  and  this  seems  to  be  the  present 


348  POPULAR  LAW-MAKING 

tendency.  The  most  striking  present  experiment  is  in  Mil- 
waukee; both  Haverhill  and  Brockton  tried  socialistic  city 
government  in  Massachusetts,  but  abandoned  it. 

Civil-service  reform  has  very  generally  made  progress  dur- 
ing the  past  twenty  years  in  State  and  city  governments, 
and  probably  the  principle  is  now  more  or  less  recognized 
in  a  great  majority  of  the  States. 

Comparatively  little  is  to  be  said  as  to  internal  improve- 
ments. The  Michigan  Constitution  provides  that  the  State 
shall  go  into  no  internal  improvement  whatever,  and  this, 
of  course,  was  the  older  principle  without  any  express  con- 
stitutional provision.  North  Dakota  and  Wyoming  provide 
that  the  State  cannot  be  interested  in  works  of  internal 
improvement  except  upon  two-thirds  vote  of  the  people. 

South  Dakota  also  provides  that  the  State  may  not  engage 
in  them  in  any  case;  Alabama,  that  it  may  not  loan  its 
credit  in  support  of  such  works;  and  Maryland  Minne- 
sota, and  Wisconsin,  that  it  may  not  contract  debts  for 
the  same,  or  in  Kansas  be  a  party  to  carrying  them  on. 
In  Virginia,  no  county,  city,  or  town  may  engage  in  any 
work  of  internal  improvement  except  roads.  Many  of  the 
States,  however,  specify  a  considerable  number  of  purposes 
for  which  State,  cities,  or  counties  may  give  or  loan  their 
credit;  and  the  matter  of  municipal  socialism  has  just  been 
discussed. 

Very  generally,  the  States  have  created  agricultural  ex- 
periment stations  and  model  farms,  drainage  districts  in  the 
South,  a  levee  system  on  the  Mississippi  River,  and  irrigation 
districts  in  the  West;  artesian  wells  in  Texas,  and  in  several 
States,  State  dairy  bureaus.  In  specialized  products,  such 
as  beet  sugar,  there  is  often  provision  for  a  State  agricult- 
ural bureau,  and  nearly  always  for  general  agricultural  as 
well  as  industrial  instruction.  The  States  are  only  beginning 
to  adopt  State  forests,  or  forest  reserves,  Massachusetts  and 
New  York  leading  the  way.  Forestry  commissions  exist  in 
a  few  States,  but  the  very  slightest  beginning  has  been  made 


INTERNAL   IMPROVEMENTS  349 

at  forestry  laws.  No  control  is  as  yet  exercised  over  refor- 
estation or  replanting;  a  few  of  the  Western  States  exempt 
growing  trees,  or  the  land  covered  by  growing  trees,  from 
more  than  a  nominal  tax,  notably  Indiana  and  Nebraska. 
The  forestry  laws  are,  however,  increasing.  In  1903  we 
find  one,  in  1904  five,  and  in  1905  six,  with  the  tree  bounty 
law  in  North  Dakota,  and  two  States  exempting  forest  lands 
from  taxes.  There  are  four  statutes  this  year  for  fish  or 
game  preserves.  In  1907  four  States  create  forestry  boards, 
and  two  exempt  forests  from  taxation,  and  in  1908  growing 
trees  are  exempted  in  Massachusetts  and  Rhode  Island. 
But  under  the  unlimited  power  of  Congress  over  Federal 
territory  not  yet  incorporated  into  States,  or  not  ceded  to  the 
State  when  incorporated,  it  is  to  the  Federal  government 
that  we  have  looked  for  the  creation  and  preservation  of 
parks,  forest  reserves,  and  natural  reserves  generally.  How 
far  it  may  constitutionally  create  such  within  the  lines  of  old 
States,  or  on  land  of  which  it  is  otherwise  incapable  of  own- 
ership, is  a  constitutional  question  still  undecided. 

The  educational  functions  of  the  State  are,  of  course, 
a  peculiar  principle  of  American  civilization.  Nearly  all 
State  constitutions  provide  that  education  is  a  natural  right, 
and  the  first  common  school  supported  by  general  taxa- 
tion appears  in  the  Colony  of  Massachusetts  Bay  before  the 
year  1640.  The  principle  of  compulsory  education  exists 
throughout  all  the  States,  and  in  all  education  of  the  most 
diversified  kind  is  given,  from  the  primary  school  or  kin- 
dergarten to  the  State  university  or  technical  school  of 
applied  science,  trade,  or  business.  Nearly  all  the  States 
have  established  State  universities  which  are  free  or  open  at 
a  nominal  charge.  Massachusetts  continues  to  rely  upon 
a  semi-private  institution,  Harvard  University,  which,  in- 
deed, is  expressly  mentioned  in  its  constitution.  Provision 
is  universally  made  also  for  evening  schools,  for  industrial 
schools,  for  public  libraries,  and  for  popular  elections,  and 
besides  the  ordinary  educational  laws  and  the  truant  laws, 


350  POPULAR  LAW-MAKING 

there  is  in  the  statutes  concerning  labor  matters  abundant 
machinery  for  requiring  some  education  as  a  preliminary 
to  any  employment.  The  age  of  compulsory  education  may 
be  said  to  average  between  the  ages  of  eight  and  fifteen, 
though  the  limits  are  extended  either  way  in  the  divers 
States.  Farm  schools  and  industrial  reform  schools  generally 
exist,  both  as  a  part  of  the  present  system  and  of  the  edu- 
cational department.  Coeducation  in  State  schools  and 
colleges  is  almost  universal.  On  the  other  hand,  as  we  have 
shown,  the  segregation  of  the  races  is  in  some  States  insisted 
upon.  Several  States  forbid  the  employment  of  teachers  un- 
der the  age  of  sixteen,  or  even  eighteen.  Free  text-books  are 
generally  provided.  The  period  of  compulsory  schooling  va- 
ries from  the  classic  twelve  weeks  in  the  winter,  as  in  old  New 
England,  to  substantially  the  full  academic  year.  Textile  and 
other  manual  training  schools  exist  in  some  States,  but  have 
generally  evoked  the  opposition  of  organized  labor,  and  are 
more  usually  created  by  private  endowment.  The  tendency 
of  civil  service  reform  legislation,  furthermore,  has  been  to 
require  a  certain  minimum  of  education,  though  it  may  be 
feared  that  the  forecast  of  De  Tocqueville  remains  justified; 
our  national  educational  weakness  is  our  failure  to  provide 
for  a  "serious  higher  instruction." 

The  great  question  of  taxation  we  may  only  mention  here 
by  way  of  exclusion.  It  is  naturally  a  matter  for  treatment 
by  itself.  The  reader  will  remember  (see  chapter  VII)  that 
nearly  all  the  States  have  now  inheritance  taxes  besides  direct 
property  taxes,  and  many  of  them  have  income  taxes  and, 
in  the  South  particularly,  license  taxes,  or  taxes  upon  trades 
or  callings.  They  all  tax  corporations,  nearly  always  by  an 
excise  tax  on  the  franchise  or  stock,  distinct  from  the  property 
tax  or  the  tax  upon  earnings.  In  both  corporation  taxes  and 
inheritance  taxes  they  are  likely  to  find  themselves  in  conflict 
with  the  Federal  government,  or  at  least  to  have  duplicate 
systems  taxing  the  same  subjects,  as,  indeed,  already  con- 
siderable injustice  is  caused  by  inheritance  taxes  imposed 


EDUCATION   AND  EXPENDITURE  351 

in  full  in  each  State  upon  the  stock  of  corporations  lying  in 
more  than  one  State.  In  such  cases  the  tax  should,  of  course, 
be  proportionate. 

The  principle  of  graded  taxation  in  the  matter  of  incomes 
and  succession  taxes  has  been  very  generally  adopted,  not 
as  yet  in  any  direct  property  tax,  except  that  a  small  amount  of 
property,  one  hundred  dollars  or  five  hundred  dollars,  is 
usually  exempt. 

The  principle  of  imposing  taxation  not  for  revenue,  but  for 
some  ulterior  or  ethical  purpose,  such  as  the  destruction 
of  swollen  fortunes,  is  liable  to  constitutional  objection  in  this 
country,  though  the  courts  may  not  look  behind  the  tax  to  the 
motive,  unless  the  latter  is  expressed  upon  the  face.  For  this 
reason,  the  present  corporation  tax,  on  its  surface,  is  im- 
posed solely  for  the  purpose  of  raising  revenue,  though  in 
debate  in  Congress  it  was  advocated  mainly  for  the  object 
of  bringing  large  corporations  under  Federal  examination 
and  control. 

The  last  matter  relating  to  taxation,  that  of  bounties, 
we  have  discussed  in  chapter  VII  also.  State  aid  bonds, 
or  bonds  of  counties,  cities,  and  towns,  issued  to  encourage 
industries,  raise  a  question  far  more  complex  than  the 
simple  bounty.  Such  legislation  has,  however,  practically 
ceased  throughout  the  country,  except  in  the  form  of  exemp- 
tion from  taxation.  It  has  been  recognized  by  a  long  line  of 
decisions  that  it  is  constitutional  to  grant  such  aid  to  railroads, 
but  it  may  be  questioned  in  almost  any  other  industry.  A 
mere  exemption  from  taxation,  especially  for  a  certain  num- 
ber of  years,  rests  on  a  stronger  constitutional  basis.  Many 
of  the  Southern  States  have  recently  passed  laws  exempting 
manufacturing  corporations,  etc.,  from  taxation  for  a  definite 
number  of  years,  and  such  provisions  are  found  in  one  or  two 
State  constitutions.  When  they  only  rest  upon  a  statute, 
however,  they  are  always  at  least  litigable  at  the  suit  of  any 
tax-payer.  So,  bonds  issued  by  the  city  of  Boston  under  a 
statute  expressly  authorizing  them  to  enable  land-owners  to 


352  POPULAR  LAW-MAKING 

rebuild  after  the  great  fire,  were  held  to  be  void.  A  Federal 
loan  was  proposed  to  raise  money  to  lend  to  the  inhabitants 
of  San  Francisco  to  rebuild  after  the  earthquake,  but  failed 
of  enactment.  It  will  be  remembered  that  the  States  have 
very  generally  no  power  to  engage  in  internal  improvements 
(see  above).  A  fortiori,  therefore,  they  can  hardly  loan  money 
or  credit  to  private  interests  be  they  never  so  much  for  the 
general  benefit.  The  difficulty  of  testing  all  such  laws  has 
been  adverted  to,  at  least  in  the  case  of  taxation.  For  that 
purpose  Massachusetts  has  a  wise  law  providing  machinery 
by  which  such  matters  may  be  contested  upon  the  action 
of  any  ten  tax-payers. 

There  are  three  great  questions  before  us  in  the  immediate 
future — the  negro,  local  or  self  government,  and  taxation, 
which  last  is  the  chief  problem  of  city  and  town  government. 

The  world  has  never  before  tried  the  experiment  of  mu- 
nicipal government,  where  those  who  have  the  local  vote  do 
not  generally  pay  the  local  taxes. 


XX 

FINAL 

One  would  suppose  that  a  democracy  which  believes  in 
the  absolute  panacea  of  law-making  would  take  particular 
pains  with  the  forms  of  its  legislation,  to  have  its  statutes 
clear,  in  good  English,  not  contradictory,  properly  expressed 
and  properly  authenticated.  You  would  certainly  suppose 
that  the  people  who  believe  that  everything  should  be  done 
under  a  written  law  would  take  the  greatest  pains  to  see  that 
law  was  official;  also,  that  it  was  clear,  so  as  to  be  "under- 
standed  of  the  people";  also,  that  it  did  not  contain  a  thou- 
sand contradictions  and  uncertainties.  When  our — I  will  not 
say  wiser,  but  certainly  better  educated — forefathers  met  in 
national  convention  to  adopt  a  constitution,  one  of  the  first 
things  they  did  was  to  appoint  a  "Committee  on  Style." 
It  is  needless  to  say  that  no  such  committee  exists  in  any 
American  legislature.  You  would  suppose  they  would  take 
pains  to  see  that  all  the  laws  were  printed  in  one  or  more 
books  where  the  people  could  find  them.  This  is  not  the 
case  in  New  York  or  in  many  of  our  greater  States.  You 
would  also  suppose  that  when  they  passed  another  law  on 
the  same  subject  they  would  say  how  much  of  the  former 
law  they  meant  to  repeal,  but  in  many  States  that  also  is  not 
done.  It  would  probably  be  too  much  to  hope  that  they 
should  not  confuse  the  subject  with  a  new  law  on  a  matter 
already  completely  covered ;  but  the  form  of  their  legislation 
should  be  improved  at  least  in  the  first  three  particulars  I 
have  mentioned. 

353 


354  POPULAR  LAW-MAKING 

What  is  the  fact?  The  secretary  of  one  new  State  re- 
ports that  the  laws,  as  served  up  to  him  by  the  legislature, 
are  "so  full  of  contradictions,  omissions,  repetitions,  bad 
grammar,  and  bad  spelling"  that  it  has  been  impossible  for 
him  to  print  them  and  make  any  sense;  the  bad  grammar 
and  the  bad  spelling,  at  least,  he  has,  therefore,  presumed 
to  correct.  But  what  should  surprise  us  still  more  is,  that  in 
very  few  of  our  States  is  there  any  authentic  edition  of  the 
laws  whatever,  and  quite  a  number  do  not  publish  their 
constitutions  1 

The  worst  condition  of  all  is  found  in  the  national  legislation 
of  Congress,  until  very  recently  in  the  great  State  of  New  York, 
and  in  those  States  which  have  adopted  the  code  system  gen- 
erally. I  do  not  say  this  as  an  opponent  of  general  codes,  but 
I  am  constrained  to  note  as  a  fact  that  those  States  are  the 
ones  which  have  their  legislation  in  the  worst  shape  of  any. 
The  charm  of  the  statute  theory  is  that  the  half -educated  law- 
yer or  layman  supposes  he  can  find  all  the  laws  written  in  one 
book.  Abraham  Lincoln  even  is  said  to  have  had  the  major 
part  of  his  "shelf  of  best  books"  composed  of  an  old  copy 
of  the  statutes  of  Indiana,  though  I  can  find  no  traces  of  such 
reading  in  the  style  of  his  Gettysburg  address.  But  how  far 
is  this  democratic  claim  that  the  laws  of  a  State  are  all  con- 
tained in  one  book  borne  out  by  the  facts  ? 

Of  our  fifty  States  and  Territories  only  Alabama,  Arizona, 
the  District  of  Columbia,  Connecticut,  Delaware,  Maine, 
Maryland,  Massachusetts,  Montana,  New  Hampshire,  New 
York  (partially),  North  Carolina,  Rhode  Island,  South  Caro- 
lina, Vermont,  and  Wisconsin  (sixteen  States)  have  any  offi- 
cial revision  or  "General  Laws";  that  is  to  say,  one  or  more 
volumes  containing  the  complete  mass  of  legislation,  up  to  the 
time  of  their  issue,  formally  enacted  by  the  legislature.  A 
number  of  other  States  have  what  are  called  "authorized  revis- 
ions" or  authorized  editions  of  the  law.  This  phrase  I  use  to 
mean  a  codification  by  one  or  more  men  (usually  a  commission 
of  three)  who  are  duly  appointed  for  the  purpose,  under  a 


THE  FORM  OF  OUR  LAWS         355 

valid  act  of  the  State  legislature,  but  whose  compilation,  when 
made,  is  never  in  form  adopted  by  the  legislature  itself. 
Leaving  out  the  constitutional  question  whether  such  a  book 
is  in  any  sense  law  at  all — for  in  all  probability  no  legislature 
can  delegate  to  any  three  gentlemen  the  power  to  make  laws, 
even  one  law,  much  more  all  the  laws  of  the  State — leaving 
out  the  constitutional  question,  it  is  very  doubtful  how  far 
such  compilations  are  reliable,  although  printed  in  a  book 
said  to  be  authorized  and  official,  and  held  out  to  the  public 
as  such.  That  is  to  say,  if  the  real  law,  as  originally  enacted, 
differs  in  any  sense  or  meaning  from  the  law  as  set  forth  in 
this  so-called  "authorized  publication,"  the  latter  will  have 
no  validity.  Indeed,  some  States  say  this  expressly.  They 
provide  that  these  compilations,  although  authorized,  are  only 
admissible  in  evidence  of  what  the  statutes  of  the  State  really 
are — that  is  to  say,  only  valid  if  uncontradicted.  It  was 
impossible  to  correspond  with  all  the  States  upon  this  point 
—if,  indeed,  I  could  have  got  opinions  from  their  respective 
supreme  courts,  for  no  other  opinion  would  be  of  any  value. 
The  compilation  of  the  State  of  Arkansas  says,  somewhere 
near  its  title-page,  that  it  is  "approved  by  Sam  W.  Williams." 
It  does  not  appear  who  Sam  W.  Williams  is,  what  authority 
he  had  to  approve  it,  or  whether  his  approval  gave  to  the  laws 
contained  in  that  bulky  volume  any  increased  validity.  This 
is  a  typical  example  of  the  "authorized"  revision,  and  this 
is  the  state  of  things  that  exists  in  such  important  States 
as  Arkansas,  California,  Colorado,  Florida,  Hawaii,  Idaho, 
Iowa,  Kansas,  Missouri,  Nebraska,  Nevada,  New  Jersey, 
New  Mexico,  North  Dakota,  Oregon,  South  Dakota,  Ten- 
nessee, Utah,  Virginia,  and  Wyoming  (twenty  in  all). 

Before  leaving  these  States,  which  do  have  some  form 
of  "revised  statutes"  or  complete  code— and  be  it  remembered 
that  I  am  never  here  speaking  of  annual  laws,  for  however 
bad  their  form  and  the  form  of  their  publication,  they  are 
usually,  at  least,  official— it  will  be  interesting,  and,  I  think, 
throw  further  light  on  the  subject,  to  cull  some  passages  from 


356  POPULAR  LAW-MAKING 

the  laws  of  States  having  such  "authorized  revisions,"  to  show 
how  far  their  real  authority  extends.  The  general  statutes  of 
1897  of  the  State  of  Kentucky  say  on  their  title-page  that  they 
are  an  authorized  compilation  approved  by  the  Supreme 
Court,  but  the  form  of  approval  of  the  Supreme  Court  of 
Kentucky  runs  as  follows:  "Although  we  consider  this  duty 
not  lawfully  imposed  upon  us,"  they  say  that,  so  far  as 
they  have  observed,  they  "detect  no  errors  in  the  compila- 
tion and  it  seems  to  have  been  properly  done."  Of  how 
much  value  such  approval  would  be  in  case  there  turned  out 
to  be  a  discrepancy  between  the  compilation  and  the  origi- 
nal statute,  I  leave  to  the  lawyers  to  judge.  The  compiled 
laws  of  New  Mexico  of  the  same  year,  made  by  the  solicitor- 
general,  contain  an  amusing  statement  under  his  own  signa- 
ture, that  he  believes  "a  large  part  of  the  laws  he  there 
prints  are  either  obsolete  or  have  actually  been  repealed  by 
certain  later  statutes,"  but  he,  as  it  were,  shovels  them  in, 
in  the  hope  that  some  of  them  may  be  good! 

The  commissioners  of  the  State  of  North  Dakota  go  still 
farther.  Their  code  of  1895  bears  a  statement  that  it  is,  by 
authority  of  law,  "brought  to  date"  by  the  commissioners, 
who  go  on  to  say  that  they  have  compared  the  codes  of  other 
States  and  have  added  and  incorporated  many  other  laws 
taken  from  such  codes  of  other  States,  apparently  because 
the  commissioners  thought  them  of  value!  One  must  really 
ask  any  first-year  student  of  constitutional  legislation  what  he 
thinks  of  that  statement,  not  only  of  its  constitutionality,  but 
of  its  audacity.  Finally,  the  State  of  South  Dakota  says, 
in  its  statutes  of  1899,  what  I  quoted  at  the  beginning — 
that  "all  the  laws  contained  in  the  book  are  to  be  considered 
as  admissible  in  evidence,"  but  not  conclusive  of  their  own 
authenticity  or  correct  statement. 

We  now  come  to  the  third,  and,  from  the  point  of  view 
of  the  believer  in  statutes,  probably  the  worst  class  of  all. 
That  is  to  say,  States  which  have  no  official  or  authorized 
compilation  whatever  and  which  rely  entirely  upon  the  enter- 


NEED  OF  AUTHORIZED   REVISIONS  357 

prise  of  money-making  publishers  to  make  a  book  which 
correctly  prints  the  laws,  and  all  the  laws,  of  the  State  in 
question.  For  one  State,  at  least,  such  a  compilation  was 
made  by  a  few  industrious  newspaper  correspondents  at 
Washington!  The  States  and  Territories  that  are  in  this 
cheerful  condition  are,  as  I  have  said:  New  York  (in  part) 
the  Territory  of  Alaska,  California,  Colorado,  Illinois,  Ind- 
iana— that  is  to  say,  there  has  been  no  official  revision  since 
1881  and  everybody,  in  fact,  uses  a  privately  prepared 
digest — Louisiana,  Michigan,  Minnesota,  Mississippi,  Ohio, 
Pennsylvania,  Washington,  and  West  Virginia  (fourteen  in 
all).  Besides  this,  there  are  other  States  such  as  Wisconsin 
and  Indiana,  already  mentioned,  where  there  is  no  official 
recent  revision,  so  that  everybody  depends  upon  a  private 
compilation,  which  is  the  only  one  procurable. 

So  much  for  the  authenticity  of  the  books  themselves  which 
contain  the  laws  upon  which  we  all  have  to  depend.  Now, 
coming  to  the  form  of  the  laws.  As  I  have  already  remarked, 
there  is  no  committee  on  style.  There  is  no  attempt  whatever 
made  at  scientific  drafting.  To  give  an  example  of  what 
difference  this  may  make  in  mere  convenience,  it  is  only  a  few 
weeks  since,  in  Massachusetts,  a  chapter  of  law  to  protect 
the  public  against  personal  injuries  caused  by  insolvent  rail- 
way and  street  railway  companies  was  drawn  up  by  a  good 
lawyer,  and  contained  between  twenty  and  thirty  sections, 
or  about  three  pages  of  print.  It  was  brought  to  another 
lawyer,  certainly  no  better  lawyer,  but  a  legislative  expert, 
who  got  all  that  was  desired  into  one  section  of  five  lines. 
There  is  no  committee  on  style,  there  is  no  expert  drafting. 
The  case  of  the  recent  Massachusetts  statute  declaring  the 
common  law  to  be  the  common  law,  and  therefore  jeopard- 
izing the  very  object  of  the  statute,  will  not  be  forgotten 
see  p.  188  above).  There  are  certain  definite  recommenda- 
tions I  should  like  to  make. 

First,  adopt  the  provision  that  "no  statute  shall  be  regarded 
as  repealed  unless  mentioned  as  repealed,  and  when  a  law  is 


358  POPULAR  LAW-MAKING 

amended,  the  whole  law  shall  be  printed  as  amended  in  full." 
This  would  acquaint  the  legislature  with  the  law  already 
existing,  before  they  proceed  to  change  it.  Next  provide 
that  all  laws  shall  be  printed  and  published  by  a  State 
publisher  and  the  authenticity  of  all  revisions  be  duly  guar- 
anteed by  their  being  submitted  to  the  legislature  and  re- 
enacted  en  bloc,  as  is  our  practice  with  revisions  in  Mas- 
sachusetts and  some  as  other  States.  Third,  the  local  or 
private  acts  should  be  separated  from  the  public  laws,  and 
they  might  advantageously  even  be  printed  in  a  separate 
volume,  as  is  done  in  some  States  already.  But  who  shall 
determine  whether  it  is  a  private,  local  or  special  act,  or  a 
general  law  ?  I  can  only  answer  that  that  must  be  left  to  the 
legislature  until  we  adopt  the  system  strongly  to  be  recom- 
mended of  a  permanent,  preliminary,  expert  draftsman. 
Finally,  no  legislation  must  ever  be  absolutely  delegated. 
That  is  to  say,  even  if  a  revision  is  drawn  up  by  an  author- 
ized commission,  their  work  should  be  afterward  ratified  by 
the  legislature.  It  is  said,  I  think,  that  the  constitution  of 
Virginia,  drawn  up  by  a  constitutional  convention,  was  never 
ratified  by  the  people.  If  so,  there  is  a  grave  constitutional 
doubt  whether  it  or  any  part  of  it  may  not  be  repealed  at 
any  time  by  a  simple  statute.  But  can  a  constituent  body  of 
the  mass  of  the  people,  the  fundamental  and  original  political 
entity  of  the  Anglo-Saxon  world,  be  forbidden  from  delegat- 
ing its  legislative  power,  as  its  representatives  themselves  are 
forbidden  ? 

The  last  matter,  that  of  arrangement,  order  of  printing,  and 
form  of  title,  is  so  directly  connected  with  that  of  indexing 
that  I  shall  treat  the  two  things  together.  Now,  there  are 
three  different  methods  of  arrangement,  or  lack  of  arrange- 
ment, to  be  found  in  printing  the  laws  of  our  forty-six  States 
and  four  Territories,  both  in  the  revisions  and  in  the  annual 
laws.  The  revisions,  however,  are  more  apt  to  have  a  topical 
arrangement,  and  to  be  divided  into  chapters,  with  titles, 
each  containing  a  special  subject  and  arranged,  either  topi- 


ARRANGEMENT  AND  INDEXING  359 

cally,  or,  in  some  States,  even  so  intelligent  otherwise  as  are 
Pennsylvania  and  New  Jersey,  arranged  with  the  elementary 
stupidity  of  the  alphabetical  system.  I  say,  stupid;  when, 
for  instance,  you  have  a  chapter  on  "Corporations/'  no  one 
can  tell  whether  the  legislature  or  compilers  are  going  to 
put  it  under  "C"  for  corporations,  under  "I"  for  incorpora- 
tions, or  under  "  J"  for  joint-stock  companies.  The  alpha- 
betical system  of  arrangement  is  the  most  contemptible  of  all, 
and  should  be  relegated  to  a  limbo  at  once.  The  annual  laws, 
of  course,  are  much  less  likely  to  have  any  arrangement 
whatever.  Passed  chronologically,  they  are  more  apt  to 
follow  in  the  order  of  their  passage. 

Now  these  systems  as  we  find  them  are  as  follows :  in  nearly 
all  States  public  and  private  laws  are  lumped  together, 
although  in  a  few  they  are  indexed  separately.  Most  of  the 
States  to-day,  including  all  the  "code"  States,  adopt  the 
topical  system  of  arrangement,  as,  indeed,  must  be  the  case 
in  anything  that  might,  by  any  possibility,  be  called  a  code, 
and  even  a  general  "revision"  of  the  statutes  will  naturally 
fall  into  chapters  covering  certain  subjects.  A  few  States, 
as  I  have  said,  cling  to  the  crude  alphabetical  system,  and 
quite  a  number  have  no  discernible  system  whatever.  In 
some  States  the  annual  laws  are  arranged  by  number,  in  some 
by  date  of  passage,  and  in  some  apparently  according  to  the 
sweet  will  of  the  printer.  In  those  States  which  do  not 
arrange  them  or  entitle  them  by  date  of  passage  we  have  to 
depend  on  the  crude  and  dangerous  system  of  citation  by 
page.  Acts  of  Congress  are  sometimes  cited  by  date  of  pas- 
sage, sometimes  more  formally  by  volume  and  number  of 
the  Statutes  at  Large,  and  more  often  than  either,  probably, 
by  the  popular  name  of  the  statute,  such  as  the  "Sherman 
Act,"  the  "Hepburn  Act,"  or  the  "Interstate  Commerce 
Law." 

It  seems  to  me  we  should  recommend  one  system.  That 
for  the  codes  or  general  revisions  should  certainly  be  topical. 
That  of  the  annual  laws  may  either  be  topical  or  chronological, 


360  POPULAR  LAW-MAKING 

but  the  statutes,  in  whatever  order  they  are  printed,  should  be 
numbered  and  cited  by  number.  No  alphabetical  arrange- 
ment ever  should  be  permitted. 

As  to  indexing  we  should  urge  upon  State  legislatures, 
secretaries  of  State,  and  official  draftsmen  (when  we  get  any) 
that  the  very  excellent  system  contained  in  the  New  York  Year 
Book  of  Legislation  should  be  adopted  for  all  volumes  of 
State  laws.  It  is  as  bad  for  the  index  to  be  too  big  as  to  be 
too  little,  and  it  does  not  follow  that  the  good  draftsman  is 
a  good  indexer.  The  index  to  our  Revised  Laws  of  Mas- 
sachusetts is  contained  in  one  large  separate  volume  of  570 
double-column  pages.  To  look  for  a  statute  in  the  index 
is  just  about  as  bad  as  to  look  for  it  in  the  revision  itself. 
The  most  important  point  of  all  is  the  proper  choice  of  subject 
titles.  Laws  should  be  indexed  under  the  general  subject  or 
branch  of  the  science  of  jurisprudence,  or  the  subject-matter 
to  which  they  belong,  not  too  technically  and  not  too  much 
according  to  mere  logic.  For  example,  any  lawyer  or  any 
student  of  civics  who  wished  to  learn  about  the  labor  laws 
of  a  State,  whether,  for  instance,  it  had  a  nine-hour  law 
or  not,  would  look  in  the  index  under  the  head  of  "Labor." 
Labor  has  become,  for  all  our  minds,  the  general  head  under 
which  that  great  and  important  mass  of  legislation  concerning 
the  relation  of  all  employers  and  employees,  and  the  condition 
and  treatment  of  mechanical  or  other  labor,  naturally  falls. 
But  if  you  search  in  our  elaborate  index  of  Massachusetts  for 
the  head  of  "Labor"  you  will  not  find  it.  If  you  look  under 
"Employment  of  Labor"  you  will  find  it,  but  you  cannot  be 
certain  that  you  will  find  all  of  it,  and  you  will  find  it  under 
so  many  heads  that  it  would  take  you  quite  ten  or  fifteen 
minutes  to  read  through  and  find  out  whether  there  is  an 
"hours-of -labor"  law  or  not.  On  the  other  hand,  purely 
technical  matters,  such  as  "Abatement"  are  usually  well 
indexed,  because  their  names  are  what  we  call  "terms  of  art," 
under  which  any  lawyer  would  look. 

But,  after  all,  it  does  not  so  much  matter  what  system 


NEED  OF  PARLIAMENTARY   DRAFTSMEN        361 

we  adopt  as  long  as  it  is  the  same  system.  At  present  I 
know  of  nothing  better  than  the  forty  heads  contained  in 
the  "Principal  Headings"  of  the  New  York  State  Library 
Index,  though  I  should  like  to  change  the  names  of  a  few. 
For  instance,  "Combinations  or  Monopolies"  is  not  the 
head  to  which  the  lawyer  would  naturally  look  for  statutes 
against  Trusts.  The  word  "trusi"  has  become  a  term  of 
art.  If  not  put  under  "Trusts"  it  should  be  under  "Re- 
straint of  trade"  or  "Monopolies,"  but  the  word  "combina- 
tion "  is  neither  old  nor  new,  legal  nor  popular.  A  combina- 
tion is  lawful.  If  unlawful,  it  is  not  a  combination,  but  a 
conspiracy. 

The  most  important  statute  of  the  United  States  is  perhaps 
the  most  horrible  example  of  slovenliness,  bad  form,  and 
contradiction  of  all.  The  "Hepburn  Act"  is  the  amended 
Interstate  Commerce  Act,  and  is  printed  by  Congress  in  a 
pamphlet  incorporating  with  it  quite  a  different  act  known 
as  the  Elkins  Act,  besides  the  Safety  Appliance  Act,  the 
Arbitration  Act,  and  several  others.  We  all  remember  under 
what  political  stress  this  legislation  was  passed,  with  Con- 
gress balking,  the  senators  going  one  way,  the  attorney- 
general  another,  the  radical  congressmen  in  front,  and  the 
president  pushing  them  all.  It  is  easily  intelligible  that  such 
a  condition  of  things  should  not  tend  to  lucid  legislation, 
particularly  when  an  opposing  minority  do  not  desire  the 
legislation  at  all,  and  hope  to  leave  it  in  such  a  shape  as  to 
be  contradictory,  or  unconstitutional — or  both.  (This  has 
been  intentionally  done  more  than  once.)  All  of  it  a  mass 
of  contradictions  or  overlaying  amendments,  the  first  impor- 
tant part  of  it  which  came  under  the  scrutiny  of  the  Supreme 
Court  only  escaped  being  held  unconstitutional  by  being 
emasculated.  Its  other  clauses  have  yet  to  face  that  dreaded 
scrutiny.  Its  basic  principle  has  yet  to  be  declared  constitu- 
tional, while  the  only  principle  which  has  proved  of  any  value 
was  law  already.  This  wonderful  product  of  compromise 
starts  off  by  saying  "Be  it  enacted,  etc.,  Section  1  as  amended 


362  POPULAR  LAW-MAKING 

June  29,  1906."  It  begins  with  an  amendment  to  itself. 
It  does  not  tell  you  how  much  of  the  prior  law  was  repealed, 
except  upon  a  careful  scrutiny  which  only  paid  lawyers  were 
willing  to  give.  Upon  the  old  Interstate  Commerce  Act  of 
1887,  after  quoting  it  substantially  in  full,  it  adds  a  mass 
of  other  provisions,  some  of  which  are  in  pari  materia,  some 
not;  some  contradictory  and  some  mere  repetitions.  It 
amends  acts  by  later  acts  and,  before  they  have  gone  into  effect, 
wipes  them  out  by  substitutions.  It  hitches  on  extraneous 
matters  and  it  amends  past  legislation  by  mere  inference. 
Like  a  hornet  it  stings  in  the  end,  where  revolutionary 
changes  are  introduced  by  altering  or  adding  a  word  or  two 
in  sections  a  page  long,  and  it  ends  with  the  cheerful  but 
too  usual  statement  that  "all  laws  and  parts  of  laws  in  conflict 
with  provisions  of  this  act  are  hereby  repealed."  As  a  result 
no  one  can  honestly  say  he  is  sure  he  understands  it,  any 
more  than  any  serious  lawyer  can  be  certain  that  its  impor- 
tant provisions  are  any  one  of  them  constitutional.  And 
that  huge  statute  with  sections  numbered  1,  2,  5,  16,  16a, 
etc.,  with  amendments  added  and  substituted,  amended  and 
unamended,  is  contained  in  twenty-seven  closely  printed 
pages.  I  venture  to  assert  boldly  that  any  competent 
lawyer  who  is  also  a  good  parliamentary  draftsman  could 
put  those  twenty-seven  pages  of  obscurity  into  four  pages, 
at  most,  of  lucidity,  with  two  days'  honest  work.  By  how 
little  wisdom  the  world  is  governed!  And  how  little  the 
representatives  of  the  people  care  for  the  litigation  or  trouble 
or  expense  that  their  own  slovenliness  causes  the  people !  For 
the  necessity  of  political  compromise  is  no  excuse  for  this. 

I  therefore  urged  before  the  National  Association  of  State 
Libraries,  at  their  annual  meeting  of  1909,  that  they  should 
use  their  influence  with  the  various  State  governments  at 
least — "1,  that  all  revisions  be  authenticated,  authorized, 
and  published  by  the  State;  2,  that  the  annual  laws  be  sep- 
arated, public  from  private,  and  be  printed  by  numbered 
chapters  arranged  either  chronologically  or  topically;  3, 


RECOMMENDATIONS   OF   THE   STATE   LIBRARIANS   363 

that  the  indexes  be  arranged  under  the  forty  general  heads 
used  by  the  New  York  State  Library  in  its  annual  digest, 
with  such  additional  heads  as  may,  perhaps,  prove  neces- 
sary in  some  States,  such  as,  for  instance,  Louisiana,  which 
has  subjects  and  titles  of  jurisprudence  not  known  to  the 
ordinary  common -law  States;  4,  that  the  constitutions  be 
printed  with  the  laws;  5,  that  every  State,  under  a  law,  em- 
ploy a  permanent,  paid  parliamentary  or  legislative  drafts- 
man whose  duty  it  shall  be  to  recast,  at  least  in  matters  of 
style  and  arrangement,  all  acts  before  they  are  passed  to  be 
engrossed. 

Any  private  member  introducing  a  bill  can,  of  course,  avail 
himself  of  the  draftsman's  services  before  the  bill  is  originally 
drawn.  His  advice  may  be  required  by  the  legislature  or  by 
legislative  committees  on  the  question  whether  the  proposed 
legislation  is  necessary,  that  is  to  say,  whether  it  is  not 
covered  by  laws  previously  existing.  It  shall  be  his  duty 
then  to  edit  the  laws,  arrange  them  for  publication,  and  to 
authenticate  by  his  signature  the  volumes  of  the  annual  laws. 
One  person  is  better  than  two  or  three  for  such  work,  but  he 
should  be  paid  a  very  large  salary  so  that  he  can  afford  to 
make  it  his  life  work.  He  should  be  appointed  for  a  very 
long  term  and  should  have  ample  clerical  assistance.  It 
should  also  be  his  duty  to  correspond  and  exchange  informa- 
tion with  similar  officials  in  other  States.  In  other  words, 
he  with  his  assistants  should  be  the  legislative  reference 
department.  These  recommendations  were  duly  referred 
to  the  Committee  on  Uniformity  in  preparation  of  session 
laws. 

At  some  risk  of  wearying  the  reader  I  have  attempted 
superficially  to  cover  a  very  extensive  field.  I  started  with 
quoting  Blackstone's  remark  that  there  is  no  other  science 
in  which  so  little  education  is  supposed  to  be  necessary  as 
that  of  legislation.  These  words  were  penned  by  him  more 
than  one  hundred  and  fifty  years  ago  and  there  is  still  no 


364  POPULAR  LAW-MAKING 

book  upon  this  subject;  the  books  on  Government,  Par- 
liamentary Law,  and  Hermeneutics  concerning  respectively 
the  source,  the  procedure,  and  the  interpretation  of  legis- 
lation, not  the  content  thereof.  I  can  but  hope  to  have 
called  attention  to  the  immense  importance  of  this  subject, 
particularly  in  our  representative  democracy,  and  I  will 
beg  my  readers  who  have  been  patient  with  me  to  the 
end  to  reflect  for  more  than  a  moment  on  the  extraor- 
dinarily novel  state  of  things  that  this  modern  [notion  of 
the  legislative  function  brings  about.  It  is  a  commonplace 
of  historical  writers  to  open  their  first  chapter  by  calling 
attention  to  the  difference  made  by  steel  and  electricity,  to 
the  fact  that  it  took  longer  to  get  from  Boston  to  Washington 
in  1776  than  it  does  to-day  from  Maine  to  California  and 
back;  that  it  took  longer  even  for  the  rural  legislator  in  the 
Connecticut  Valley  to  get  to  his  State  Capitol  than  it  does 
to-day  to  go  from  there  to  Washington.  But  no  one,  I 
think,  has  ever  called  attention  to  the  enormous  differences 
in  living,  in  business,  in  political  temper  between  the  days 
(which  practically  lasted  until  the  last  century)  when  a  cit- 
izen, a  merchant,  an  employer  of  labor,  or  a  laboring  man, 
still  more  a  corporation  or  association,  and  lastly,  a  man 
even  in  his  most  intimate  relations,  the  husband  and  the 
father,  well  knew  the  law  as  familiar  law,  a  law  with 
which  he  had  grown  up,  and  to  which  he  had  adapted  his 
life,  his  marriage,  the  education  of  his  children,  his  busi- 
ness career  and  his  entrance  into  public  life — and  these 
days  of  to-day,  when  all  those  doing  business  under  a 
corporate  firm  primarily,  but  also  those  doing  business  at 
all;  all  owners  of  property,  all  employers  of  labor,  all 
bankers  or  manufacturers  or  consumers;  all  citizens,  in 
their  gravest  and  their  least  actions,  also  must  look  into  their 
newspapers  every  morning  to  make  sure  that  the  whole 
law  of  life  has  not  been  changed  for  them  by  a  statute 
passed  overnight;  when  not  only  no  lawyer  may  maintain 
an  office  without  the  most  recent  day-by-day  bulletins  on 


PURPOSE  OF  THE  BOOK  365 

legislation,  but  may  not  advise  on  the  simplest  proposi- 
tion of  marriage  or  divorce,  of  a  wife's  share  in  a  hus- 
band's property,  of  her  freedom  of  contract,  without  sending 
not  only  to  his  own  State  legislature,  but  for  the  most 
recent  statute  of  any  other  State  which  may  have  a  bearing 
on  the  situation.  Moreover,  these  statutes,  which  at  any 
moment  may  revolutionize  a  man's  liberty  or  his  property, 
are  not  as  they  were  in  old  times — a  mere  codification,  or 
attempt  at  the  best  expression  of  a  law  already  existing  and 
well  "understanded  of  the  people";  but  may  and  probabJy 
will  represent  a  complete  reversal  of  experience,  an  absolute 
alteration  of  human  relations,  a  paradox  of  all  that  has 
gone  before;  and  even  when  they  endeavor  not  to  do  so,  as 
in  the  case  of  that  Massachusetts  statute  above  referred  to, 
their  authors'  lack  of  education  in  the  science  of  legislation 
may  unintentionally  cause  a  revolution  in  the  law.  And 
even  when  a  statute  does  not  do  this,  no  lawyer  can  be  certain 
what  it  means  until,  years  or  decades  afterward,  it  has 
received  recognition  from  an  authoritative  court.  That  is 
why  much  complaint  has  been  made  of  lawyers;  they  are  said 
not  to  know  their  business,  not  to  be  able  to  tell  what  the 
law  is.  The  head  of  a  great  railroad  has  recently  com- 
plained that  he  was  only  anxious  to  obey  the  law,  but  had 
great  difficulty  in  finding  out  what  the  law  was.  Any  good 
lawyer  with  common  sense  knows  the  common  law  and 
usage  of  the  people;  but  no  one  could  tell  at  the  time  of 
its  passage  what,  for  instance,  the  Sherman  Act,  enacted 
twenty-three  years  ago,  meant;  the  twenty-three  years  have 
elapsed;  the  anti-trust  law  has  been  before  the  courts  a 
thousand  times,  and  the  best  lawyers  in  the  country  do  not 
to-day  know  what  it  means;  and  the  highest  tribunal  in  the 
land  is  so  uncertain  on  the  subject  that  it  has  ordered  the 
Standard  Oil  case  reargued. 

This  is  not  to  say  that  one  must  not  recognize  the  meaning 
and  the  need  of  law-making  by  statute;  of  law  made  by  the 
people  themselves  to  suit  present  conditions.  "There  should 


366  POPULAR  LAW-MAKING 

be  a  law  about  it,"  is  the  popular  phrase — commonly  there 
is  a  law  about  it,  and  the  best  of  all  law,  because  tested  by 
time  and  experience;  only,  the  people  do  not  realize  this, 
and  their  power  and  practice  of  immediate  legislation  is  not 
only  the  great  event  in  our  modern  science  of  government, 
but  it  is  also  the  greatest  change  in  the  rules  and  conditions 
of  our  living,  and  our  doing,  and  our  having.  Not  only  our 
office-holders,  but  we  ourselves,  are  born,  labor,  inherit, 
possess,  marry,  devise,  and  combine,  under  a  perpetual  ple- 
biscitum,  referendum,  and  recall.  I  can  only  hope  that  I 
have  made  some  suggestions  to  my  readers  which  will  awaken 
their  interest  to  the  importance  of  the  subject. 


INDEX 


Abbot  of  Lilleshall  case,  71. 

Abduction,   statute   against,    A.  D. 
1452,  105,  106  (see  Kidnapping). 

Acton  Burnel  (see  Stati'te  Merchant), 
90. 

Actors  forbidden  from  swearing 
on  the  stage,  112. 

Administration  of  estates,  unfair 
laws  in  American  States,  91,  153. 

Administrative  law  (see  Boards  and 
Commissions),  still  exists  in  Ger- 
many, 10;  forbidden  by  Magna 
Charta,  34;  did  not  exist  in  Eng- 
land, 36,  345. 

Adultery  now  made  a  crime,  339. 

Advertising,  signs  forbidden,  154;  of 
patent  medicines,  divorce  matters, 
etc.,  prohibited,  302. 

"Affected  with  a  public  interest"; 
use  of  phrase  to  justify  rate  regu- 
lation, 164. 

African  labor,  etc.  (see  Negro). 

Agricultural  products,  exempted 
from  anti-trust  laws,  181,  187; 
stations  usually  exist  in  State,  348. 

Aids  (see  Taxation,  Taxes),  12,  23; 
the  three  customary,  33,  134. 

Ale  (see  also  Sumptuary  Legisla- 
tion), Assize  of,  44,  53. 

Alfred,  laws  of  (see  Wessex),  19. 

Alien,  legislation  against,  in  labor 
matters  dates  from  1530,  81; 
rights  of,  in  real  estate,  90  ;  in 
personal  property,  91;  immigra- 
tion of,  regulated,  128;  naturaliza- 
tion of,  128;  alien  and  sedition 
laws,  302;  libel  against  the  govern- 
ment, suits  for,  303;  general 
scheme  of  our  legislation  concern- 
ing, 308;  laborers  may  not  be 
specially  taxed,  310;  may  be 
forbidden  to  hold  lands,  310. 

Alienation  of  affections,  discussion 
of  suit  for.  325. 

Allowable  socialism  (see  Socialism). 

American  legislation  in  general, 
chapter  concerning,  chapter  VI. 

Anarchism  (see  Socialism),  defini- 
tion of,  126;  advocating  of,  made 
a  felony,  340. 


Anarchists,  legislation  against,  129; 
naturalization  of,  129;  may  be 
denied  immigration,  302. 

Anglo-Saxon  law  (see  Law),  re- 
establishment  of,  chapter  concern- 
ing, chapter  III;  was  customary 
law,  7,  8;  method  of  enforcing, 
9;  its  nature,  loss,  and  restora- 
tion, 14,  17. 

Anglo-Saxon  legislation  (see  also 
Legislation),  17. 

Anti-truck  laws,  236. 

Anti-trust  laws  (see  Trusts). 

Apparel  (see  Sumptuary  Laws),  stat- 
ute of  1482,  106. 

Appeal,  right  to,  in  criminal  cases 
given  government,  343. 

Apprentices,  early  laws  of,  85. 

Arbitration,  of  labor  disputes,  laws 
for,  239,  266,  270;  laws  aimed 
against  strikes,  270;  laws  in  the 
British  colonies,  273. 

Archery  favored  by  legislation,  106. 

Arms  (see  Assize  of  Arms),  chapter 
relating  to,  chapter  XIII;  right 
to  bear,  278;  does  not  extend 
to  Parliament,  96;  history  of,  277; 
made  compulsory,  278;  right  to 
bear  established  in  bill  of  rights, 
279;  does  not  include  concealed 
weapons,  282. 

Army  (see  Standing),  use  of,  275; 
its  bearing  upon  liberty,  278; 
complained  of  in  petition  of 
rights,  279;  used  to  control  in- 
ternal disputes,  278;  use  of  by 
President  in  civil  matters  ob- 
jectionable, 283. 

Arrest,  freedom  from,  under  Magna 
Charta,  37. 

Artificers  and  craftsmen  (see  Labor). 

Asiatics  (see  Mongolians),  may  not 
be  citizens,  309;  legislation  against 
in  the  Far  West,  309;  may  be  un- 
constitutional, 309;  may  not  be 
employed  in  public  work,  310. 

Assembly,  right  of,  as  bearing  upon 
freedom  of  speech,  302;  the  right 
to,  and  free  elections,  284. 

Assignable  (see  Negotiable). 


367 


368 


INDEX 


Assistance,    writs    of,     in 
chusetts,  304. 

Assize  of  Arms,  31,  277. 

Assize  of  Bread  and  Beer,  44,  53. 

Association,  freedom  of  (see  Com- 
bination), is  guaranteed  in  Swit- 
zerland, 273. 

Atheism  does  not  disqualify  a  wit- 
ness, 306. 

Austin's  views  of  law,  10. 

"Avocation,  affected  with  a  public 
interest,"  164. 

Bakers,  statute  of  (see  Assize  of 
Bread  and  Ale),  54. 

Bakeshops,  bakeries,  legislation  con- 
cerning (see  Sweatshops'),  226,  227. 

Balance  of  trade  thought  desirable 
as  early  as  1335,  96. 

Ballot,  form  of,  287  (see  Elections); 
the  Australian,  New  York,  etc., 
288,  289. 

Banishment  not  a  constitutional 
punishment,  34. 

Bankruptcy  act,  the  first,  A.  D. 
1515,  108;  under  Cromwell,  115; 
national,  152. 

Battle,  trial  by,  28. 

Beds,  making  of,  regulated  in  Okla- 
homa and  the  England  of  1495, 
107. 

Beer  (see  Sumptuary  Legislation, 
Assize  of  Beer),  54. 

Beggars  (see  Vagabonds),  81  et  seq. 

Benefit  funds,  legislation  against, 
238. 

Benefit  of  clergy,  origin  of,  29,  30; 
in  modern  trials,  45;  reason  of, 
48;  modification  of  in  murder, 
etc.,  45;  extended  to  women, 
112;  withheld  from  all  women 
earlier,  335. 

Betterment  taxes  (see  Eminent  Do- 
main), limitation  of,  132;  reason 
for,  140. 

Bigamy,  a  sin,  not  a  crime  in  the 
earlier  view,  30;  statute  of,  90; 
forbidden  by  statute  of  James  I, 
111. 

Bill  of  rights  (see  Petition  of  Right, 
Constitution). 

Bills  of  exchange,  invention  of,  149. 

Bills  of  lading,  151. 

Bishops,  may  be  appointed  by  the 
crown,  108;  abolished  in  1646, 
115. 

Black  death,  gave  rise  to  first  statute 
of  laborers,  66;  plague  of,  1348, 
98;  effect  of  on  prices,  159. 

Black  labor  (see  Negroes,  Peonage, 
etc.),  in  the  Orange  River  Colony, 
273. 


Blacklists  (see  Boycotts),  American 
statutes  against,  243,  244;  in 
modern  American  statutes,  269; 
laws  against  in  Germany  and  Aus- 
tria, 275. 

Blackmail  statutes,  333. 

Blackstone  quoted  as  to  legislation, 
120,  363. 

"Bloody"  statute  against  heretics, 
1539,  108. 

Boards  and  commissions,  growth  of, 
141;  must  be  bi-partisan,  288. 

Bounties,  constitutional  objection 
to,  33;  usually  unconstitutional, 
134;  in  foreign  countries,  134; 
Federal  bounties,  134;  public  ap- 
propriations may  be  justified  in 
times  of  emergency,  135;  State 
usual  subjects  of,  135. 

Bows  and  arrows  (see  Archery)  much 
used  in  England,  106. 

Boycotts  (see  Conspiracy),  58,  64; 
first  recorded  precedent  of  in 
1221,  71;  "against  the  common 
weal  of  the  people"  made  unlaw- 
ful in  1503,  53;  in  modern  times, 
264;  intent  the  test,  264;  stat- 
utes, 269;  definitions  of,  269; 
unlawful  under  anti-trust  laws, 
186,  187;  in  modern  American 
statutes,  269;  Alabama  defini- 
tion of,  269;  no  European  legis- 
lation on,  273;  right  to  prosecute 
as  bearing  upon  right  to  freedom 
of  speech,  302. 

Brewer,  Justice,  Yale  address 
quoted,  127. 

Bribery  of  votes  by  employment, 
etc.,  286  (see  Corruption);  recent 
statute  against,  342. 

Building,  laws  regulating,  233;  sani- 
tary regulations  under  police 
power,  234. 

Bulk,  sales  in,  151,  154. 

Business  corporations,  act  of,  Massa- 
chusetts, 180. 

By-laws,  of  guilds  must  not  be  in  re- 
straint of  trade,  70;  against  the 
common  weal  of  the  people  made 
unlawful  in  1503,  70;  of  corpora- 
tions must  be  reasonable,  78;  il- 
legal, forbidden,  1503,  80;  for- 
bidding appeal  to  the  law  courts 
unlawful,  80;  the  Norwich  tailors' 
case,  174. 

Cabinet,  functions  of  in  England, 
23. 

Cade,  Jack,  attainder  of,  79;  rebel- 
lion of,  its  effect,  etc.,  284. 

Canada,  legislation  on  arbitration 
270. 


INDEX 


369 


Canon  law  (see  Church  Law)t  29; 
supplanted  by  common  law,  38; 
early  jealousy  of,  39. 

Canons  of  the  Church  (see  Canon 
Law). 

Canute,  laws  of,  21. 

Capital,  combinations  of  (see 
Trusts). 

Capital  punishment,  laws  abolishing, 
341. 

Carlyle,  his  remark  on  legislation, 
117. 

Carriers,  rates  of,  fixed  by  law, 
165. 

Carter,  James  C.,  quoted,  178. 

Cartoons,  laws  against,  301. 

Cash  payment  of  wages,  236;  danger 
of  laws  for,  239. 

Caucuses  (see  Primaries),  regulation 
of  by  law,  282. 

Celibacy  of  priests  a  modern  doc- 
trine, 90. 

Cemeteries,  eminent  domain  for,  133. 

Centralization,  by  Federal  incor- 
poration law,  189;  as  caused  by  the 
fourteenth  amendment,  311. 

Certificates  (see  Stock  Certificates, 
Trust  Certificates,  etc,). 

Chancellor  (see  Injunction). 

Chancery  (see  Equity  Jurisdiction), 
early  jealousy  of  by  the  people, 
77;  court  of,  origin,  66;  the  star 
chamber,  80;  statute  against 
jurisdiction,  96;  in  labor  dis- 
putes, 205. 

Charity  (see  Bounties),  modern  legis- 
lation concerning,  346. 

Charter  of  liberties  of  Henry  I,  27; 
of  Henry  II,  28. 

Charter  (see  Magna  Charta),  early 
royal  charters  a  concession  of 
Anglo-Saxon  liberties,  13;  as 
previously  existing,  9. 

Child  labor,  laws  concerning,  219, 
224;  hours,  216-219,  223;  abso- 
lute prohibition  of,  222,  336;  age 
limit,  224;  dangerous  and  immoral 
trades,  225;  young  girls,  225; 
in  mines,  225. 

Children,  guardianship  of,  29;  in 
America,  labor  of,  regulated,  219; 
guardianship  of  may  be  given 
either  parent,  319;  rights  of  in 
marriage  and  divorce,  325;  ten- 
dency to  State  control  of,  its  effect, 
338. 

Chinese  (see  Mongolian) ,  laws  against, 
308  et  seq. 

Chitty,  cited  as  to  conspiracy,  266. 

Christian  Science,  laws  regulating 
practice  of,  148;  not  protected  by 
the  Constitution,  307. 


Church  law  (see  Canon  Law),  free- 
dom from,  28;  early  jurisdiction 
of,  28,  31;  governs  sin,  30;  of 
Henry  VIII  and  Mary,  110;  of 
Elizabeth,  111;  in  U.  S.,  306; 
tests,  299. 

Church  of  Rome  supreme  over  Eng- 
land, 31. 

Cigarettes,  manufacture  and  sale  of 
forbidden,  142;  laws  against,  339. 

Cigar  making  (see  Sweatshops). 

Cincinnati,  order  of,  316. 

Citizens,  (see  Aliens,  Suffrage,  etc.) 

Citizenship  of  American  Indians,  20; 
of  other  races,  chapter  XVI. 

City  (see  Government),  debt  limited 
by  statute,  346;  ordinances  in 
effect  laws,  343. 

Civil  law,  early  jealousy  of,  39;  sup- 
planted as  to  legitimacy,  39. 

Civil  rights  of  negroes,  etc.,  312; 
(see  Class  Legislation,  Liberty, 
Equality). 

Civil  service  reform,  tendency  to 
extend,  348. 

Clarendon,  constitutions  of,  28,  29. 

Class  legislation,  as  to  war  veterans, 
281;  as  to  boycotts,  302;  making 
hereditary  privilege,  315. 

Clergy  (see  Benefit  of  Clergy),  29,  30. 

Clerks  (see  Benefit  of  Clergy),  meaning 
of  word,  45;  may  dress  like 
knights,  103. 

Closed  shop,  early  case  of,  174  (see 
Union  Labor). 

Cloth  of  gold  worn  only  by  the  king, 
108. 

Clothing,  regulation  of  by  law,  43, 
102;  manufacture  of,  a  "  sweated  " 
trade,  231,  232. 

Cloths,  trade  to  be  free  in,  98;  act 
for  spinning,  weaving,  and  dye- 
ing of,  112. 

Coal  (see  Fuel),  Massachusetts  law 
regulating  sale  of,  156. 

Codes,  in  the  United  States,  17,  48; 
in  England,  49. 

Codification,  early,  in  England,  17, 
18,  90;  partial,  46. 

Co-education,  present  tendency 
against,  322;  universal  in  State 
colleges,  350. 

Cohabitation  (see  Fornication),  made 
a  crime  in  many  States,  332. 

Coin  (see  Money). 

Coinage,  debasement  of,  forbidden, 
94. 

Cold  storage,  need  of  legislation 
against,  145,  344. 

Collective  bargaining,  principle  of, 
207. 

Color,  persons  of  (see  Negro). 


370 


INDEX 


Combinations  (see  Labor,  Trusts, 
Conspiracy),  chapter  concerning, 
chapter  XII;  the  law  of,  55,  263; 
the  modern  definition  of,  56; 
against  individuals,  57;  intent 
makes  the  guilt,  59;  to  injure 
trade,  60;  individual  injuries  to 
business,  61;  to  fix  prices,  70;  Pro- 
fessor Dicey  quoted,  263;  law  of, 
in  European  countries,  273;  with 
an  evil  end  forbidden  by  Code 
Napoleon,  273. 

Commerce,  legislation  concerning, 
142-156  (see  Interstate  Commerce, 
Trade). 

Commissions  and  tips  forbidden, 
154,  244,  341;  government  by 
commission,  142,  345  (see  Boards, 
Administrative  Law). 

Common  law,  enforcement  of,  4 ;  con- 
trast with  Roman  law,  10;  growth 
of  by  court  decision,  18;  effort  to 
restore  soon  after  the  conquest, 
28;  as  distinct  from  Roman  law, 
28;  as  against  civil  law,  39;  how 
far  enforced  in  United  States,  55; 
early  jealousy  of  chancery  power, 
75;  does  not  apply  in  towns  of  the 
staple,  but  the  law  merchant,  99; 
superiority  over  statutes,  118; 
prevails  in  criminal  matters,  339; 
self-regardant  actions,  339;  Mas- 
sachusetts statute  declaring,  357. 

Common  land,  27. 

Common  pleas,  court  not  to  follow 
king's  person,  32. 

Common  right  shall  be  done  to  rich 
and  poor,  46. 

Commons  (see  House  of  Commons). 

Commonwealth  of  England,  consti- 
tution of,  112. 

Commonwealth  vs.  Hunt,  4  Met.  Ill, 
case  of  cited,  266. 

Communism,  definition  of  (see  So- 
cialism), 125,  126. 

Company  stores  forbidden,  237;  so, 
tenements,  238;  company  insur- 
ance, 239. 

Compulsory  labor  (see  Peonage),  239. 

Compurgation,  trial  by,  341. 

Concealed  weapons  (see  Arms),  277. 

Confirmation  of  charters,  94. 

Congress,  usurpation  of  powers  by, 
22. 

Conscience,  rights  of  (see  Religion). 

Conscription  (see  Military  Service), 
does  not  exist  among  English 
peoples,  278. 

Consent,  age  of.  in  rape,  328;  In 
marriage,  328;  the  age  raised  as 
high  as  twenty-one.  332;  in  crimi- 
nal matters,  333. 


Conservation  (see  Forest  Reserves); 
of  rivers,  dates  from  statute  of 
Henry  VIII,  108. 

Conspiracy,  first  statute  against  in 
1305,  54;  doctrine  first  applied  to 
maintaining  lawsuits,  54;  next  to 
combination  between  mechanics 
or  guilds,  54;  reason  of  common 
Jaw  doctrine  of,  54;  definition  of, 
54;  determined  by  intent  or  ethi- 
cal purpose,  55;  early  statutes 
probably  declared  merely  the 
common  law,  55;  definition  of  in 
statute  of  1304,  56;  definition  of 
as  evolved  in  history.  56;  finally 
includes  intent  to  injure  another 
person  in  his  liberties  as  well  as 
results  actually  criminal,  57;  rea- 
son of  doctrine  of,  57;  doctrine 
under  common  law,  57;  reme- 
dies for,  57,  58;  combinations 
necessarily  attended  with  the  use 
of  unlawful  means,  58;  unlawful 
act  is  the  combining,  not  any  ac- 
tion done,  59;  actual  result  un- 
important, 59;  intent  the  ques- 
tion, 59;  punishment  far  more 
severe  than  for  offences  done  under 
it,  59;  always  unlawful,  may  not 
amount  to  criminality,  60;  prin- 
ciple of  extended  to  trades  unions 
and  their  by-laws,  67;  of  masons, 
etc.,  forbidden  in  1425,  70;  against 
the  law  or  customs  of  the  staple 
town  made  criminal  in  1333,  99; 
general  discussion  of  law  of,  chap- 
ter XII;  continuing  conspiracies, 
doctrine  of,  183 ;  extension  of,  by 
new  statutes,  242;  early  English 
law  of,  discussed  with  the  modern 
law  of  combinations,  264;  to 
maintain  lawsuits,  2G4;  Conspir- 
acy and  the  Trade  Disputes  acts 
(English),  267;  copied  in  Maryland, 
267 ;  changing  of  law  recommended 
in  labor  matters,  268,  269;  English 
statute  of,  copied  in  Oklahoma, 
271;  doctrine  of,  contended  for  by 
labor  unions,  271. 

Constitutional  law  (see  Unconsti- 
tutional) growth  of  in  America, 
1;  applied  by  the  courts  in 
early  England,  94,  95;  Magna 
Charta  to  be  interpreted  by  Or- 
dainours,  95;  anticipates  in  ear- 
liest times  U.  S.  Supreme  Court, 
96. 

Constitution.  State,  modern  form  of, 
121;  adoption  of  by  referendum, 
297. 

Constructive  total  loss,  origin  of 
doctrine,  55. 


INDEX 


371 


Contempt  of  court,  effort  to  obtain 
jury  trial,  344  (see  Chancery,  In- 
junction). 

Contract  (see  Freedom  of),  status  of, 
desirable  for  labor,  239. 

Convict-made  goods,  denial  of  to 
interstate  commerce,  309. 

Co-operation  (see  Profit  Sharing). 

Corn,  exportation  of,  forbidden  in 
1360.  102. 

"Corners"  (see  Engrossing,  Fore- 
stalling), unlawful  to  create  at  the 
common  law,  53,  173;  corners  of 
wheat  in  Athens,  158;  by  Joseph 
in  Egypt,  178. 

Coronation  oaths,  history  of,  24. 

Corporation,  general  discussion  of, 
Chapter  X;  Federal  incorpora- 
tion, 75;  first  appearance  of  secu- 
lar trading  corporations  uncertain, 
78,  190;  companies  corporate  re- 
quired to  record  their  charters  as 
early  as  1426,  78;  by-laws  of 
must  be  reasonable,  78,  80;  first 
trading  companies  under  Eliza- 
beth, 112;  early  charters  of  diffi- 
cult to  find,  112;  business,  origin 
of,  113;  discussion  of,  113;  pecu- 
liar powers  of  incorporated  per- 
sons, 113;  unknown  in  Rome  and 
early  England,  114;  special  munici- 
pal corporations  and  monasteries, 
114;  limited  liability  of,  invented 
in  Connecticut,  114;  form  of  the 
modern,  114,  190;  Federal  su- 
pervision, 177;  powers  of  in  other 
States,  177,  189;  prohibition  of, 
180;  holding  stock  by,  180;  earli- 
est business  companies,  190;  his- 
tory of,  191;  limited  liability,  190; 
monopoly  given  to  Federal  cor- 
porations, 191;  powers  of  in  other 
States,  79,  191;  the  Massachusetts 
law.  191;  two  theories  of  legisla- 
tion concerning,  191 ;  clash  of  State 
and  Federal  law,  192;  the  "Trust 
problem,"  192;  discussion  of  sub- 
ject by  Massachusetts  commis- 
sioners, 193,  194;  now  created 
under  general  laws,  194;  modern 
legislation  concerning,  194;  li- 
ability of  stockholders,  194;  pay- 
ment in  of  stock,  194;  income, 
195;  "publicity, "  196;  monopoly, 
consolidation,  etc.,  196;  the  hold- 
ing company,  197,  200,  201;  pub- 
lic service,  203;  duration  of  fran- 
chise, 203;  powers  of  in  other 
States,  202;  have  no  immunity 
from  giving  testimony,  305;  are 
subject  to  the  criminal  law.  305; 
primarily  through  individual  offi- 
cers, 305. 


Corrupt  practices  (see  Bribery), 
election  laws,  291. 

Corruption  (see  Bribery),  modern 
statute  against,  342. 

Council,  the  great,  was  originally  ex- 
ecutive and  judicial  as  well  as 
legislative  (see  Three  Functions  of 
Government),  5;  primarily  judicial, 
9;  legislation  incidental  to  judi- 
cial judgments,  9;  law  declared, 
not  made,  by  Great  Council,  9; 
development  with  legislative 
power  into  Parliament,  11;  the 
great  judicial  functions  of,  22;  in 
Magna  Charta,  33;  so-called  until 
1275,  47. 

Counsel,  right  to,  etc.,  299. 

Cousins,  marriage  of  forbidden,  327; 

County  courts,  early  history  of,  32; 
counties  may  loan  for  seed,  34. 

Courts,  at  first  followed  the  king's 
person,  32;  special  royal  courts 
forbidden,  94;  our  judicial  sys- 
tem, 299. 

Covins  (see  Conspiracy). 

Crime,  distinction  from  sin,  29,  30; 
tendency  of  modern  legislation,339. 

Criminating  (see  Incriminating). 

Criminal  law  and  police,  chapter  con- 
cerning, chapter  XVIII,  modern 
basis  of,  339;  procedure  in,  339; 
laws  regulating  procedure,  341; 
right  of  appeal,  343;  President 
Taft's  recommendation,  344. 

Criminal  procedure,  reform  of,  nec- 
essary, 300. 

Cromwell,  legislation  under,  15,  112; 
laws  all  repealed,  but  had  some 
effect  upon  laws  of  New  England 
colonies,  and  vice  versa,  112;  as- 
sumed supreme  power,  113;  he  had 
absolute  veto,  113;  no  constitu- 
tional government  under,  113, 
114;  unrestricted  will  of  majority 
becomes  will  of  one,  115. 

Cross-bows  forbidden  except  to 
lords,  107. 

Crown  land,  27. 

Crown  property,  wrecks,  fish,  pre- 
cious metals,  etc.,  50. 

Crusades,  expenses  of,  origin  of  tax- 
ation, 12,  31. 

Cummins,  Governor,  his  ideas  as  to 
trust  controlled  articles,  63. 

Curfew  laws  in  early  England,  92;  in 
U.  S.,  333. 

Custom,  of  the  trade,  99;  (see  also 
Law,  Customary  Law,  etc.),  en- 
forcement of,  123. 

Custom  House,  regulation  of  officers 
of,  99;  may  not  make  unreason- 
able search,  99;  travellers  to  be 
believed  upon  their  oath,  100. 


372 


INDEX 


Customs  (see  Duties'),  the  law  of  Eng- 
land, 4;  recognized  by  early 
English  charters,  as  well  as  laws, 
24. 

Customary  law,  or  natural,  6;  en- 
forced without  sanction,  7;  sanc- 
tion of  often  the  best,  7 ;  sanction 
not  a  penalty,  8;  early  legislation 
declaring,  9. 

Dairies  (see  Farms'). 

Danbury  hatters'  case,  desired  legis- 
lation against,  274. 

Dane  Geld,  London  free  from,  28. 

Dangerous  trades,  hours  of  labor  in, 
225,  227,  228. 

Day's  work  (see  Hours  of  Labor). 

Debtor  and  creditor,  laws  concern- 
ing, 152. 

Debts  (see  Imprisonment),  laws  to 
enforce  collection  of  not  necessary, 
7;  suits  to  recover  comparatively 
modern,  90;  State,  city,  etc., 
for  internal  improvements,  133; 
State,  municipal  or  county  may  be 
limited  by  statute,  136;  modern 
statutes  concerning,  151;  impris- 
onment for  forbidden,  152;  mu- 
nicipal limited  by  statute,  346; 
limit  generally  evaded,  347. 

Delegation  of  legislative  power  (see 
Three  Functions  of  Government). 

Democracy,  legislation  of,  120. 

De  odio  et  atia,  writ  of,  explained  in 
statute  of  Westminster  II,  92. 

Department  stores,  legislation 
against  anticipated  in  early  Eng- 
land, 102;  forbidden,  148,  154  (see 
Trading  Stamps). 

Descent  of  property,  legislation 
concerning,  151. 

Desertion,  a  cause  for  divorce, 
320. 

Destruction  of  food  stuffs  highly 
criminal  by  early  law,  101. 

Diet  and  apparel  (see  Sumptuary 
Laws),  laws  concerning  soon  re- 
pealed, 103. 

Direct  legislation  (see  Referendum), 
294,  295;  nominations,  288,  292; 
primaries,  290;  elections,  291; 
taxes  (see  Taxation). 

Discharge,  reason  of,  must  be 
stated  by  employer,  211. 

Discrimination,  unlawful  under 
early  common  law,  52,  165,  170; 
modern  view  of,  175;  by  the 
"trusts"  183;  the  Elkins  law 
against,  167;  in  ordinary  trade, 
175;  against  localities  by  trusts, 
188. 

Divine  right,  asserted  by  King 
James,  111. 


Divorce,  chapter  concerning,  chap- 
ter XVII;  jurisdiction  over  first 
in  church,  29;  reform  movement 
discussed,  208  (see  Marriage  and 
Divorce);  equal  rights  of  hus- 
band and  wife,  319;  causes  for  to 
both  sexes  alike,  319;  statistics  dis- 
cussed, 319;  in  most  cases  given 
to  the  wife,  319;  whether  innocent 
or  not,  320;  in  England  not  to  the 
wife  for  adultery  alone,  320;  for 
desertion  and  failure  to  support, 
320;  reforms  in  legislation,  322; 
reforms  in  procedure,  preferable, 
322;  causes  now  existing,  322; 
meaning  of  cruelty,  cause  for  di- 
vorce, 322;  uniformity  of  law  in, 
322;  statute  for  reform  of  divorce 
procedure,  322;  commissioners 
created  by  States,  323;  effect  of 
in  other  States,  324;  law  formerly 
appertained  to  the  church,  324; 
history  of  in  the  past,  326;  ear- 
liest in  1642,  326;  first  general 
law  that  of  Massachusetts  Bay, 
327;  corespondents  may  appear 
and  made  defence,  328;  crime 
made  cause  for,  328;  neglect 
cause  for,  328;  advertising,  328; 
remarriage  after  divorce  usually 
permitted,  330;  should  be  abso- 
lute, 330;  unchastity  the  cause 
if  before  marriage,  332;  govern- 
ment reports  upon,  333;  in  Euro- 
pean countries,  335. 

Doctors'  commons  lasted  until  the 
nineteenth  century,  29. 

Dog,  or  cat,  why  usually  kept  on 
ships,  49,  50. 

Dogberry,  speech  to  the  watch, 
based  on  the  statute  of  Winchester, 
92. 

Dogger,  statute  of,  101;  dogger  fish, 
trade  in  regulated,  101;  regrating 
of  dogger  fish  forbidden,  101; 
storage  and  preservation,  101; 
must  be  sold  before  night,  101. 

Domestic  labor,  no  regulation  of, 
228. 

Dorr,  rebellion,  275. 

Double  standard  in  divorce  matters, 
325;  in  matters  of  ordinary  mo- 
rality, 325. 

Double  taxation  (see  Taxes). 

Double  trading,  and  department 
stores,  102. 

Dower  right,  recognized  in  Magna 
Charta,  32;  in  American  legisla- 
tion, 318. 

Drainage  (see  Irrigation),  laws  for 
usual  in  the  South  and  West, 
348. 

Drains  and  irrigation,  131. 


INDEX 


373 


Drill  companies  (see  Military  Com- 
panies), 282. 

Droit  d'aubaine,  91. 

Drugs  (see  Pure  Food  Laws). 

Drunkenness,  first  punished  by  law 
in  1606,  111;  other  laws  against, 
112;  in  U.  S.,  339,  342. 

Due  process  of  law,  under  Magna 
Charta,  35;  principle  may  include 
immunity  from  self-incrimination, 
304. 

Duties  (see  Imports),  first  upon 
wool  in  Westminster  I,  49;  gen- 
eral nature  of,  49;  early  revenue 
laws  prohibitive  not  protective, 
hence  tariffs  for  protection,  not  for 
revenue  alone,  are  constitutional, 
49;  "new"  customs  forbidden  in 
1309,  94;  suspension  of  all  duties 
In  1309  in  order  to  see  what  the 
effect  is  upon  the  people's  pros- 
perity, 94;  "new"  customs  again 
abolished,  saving  only  the  duty  on 
wool  or  leather,  95;  only  to  be 
paid  upon  goods  actually  sold  in 
England,  not  upon  goods  export- 
ed, 100;  in  the  United  States,  131. 

Early  methods  of  trial,  28. 

East  India  Company,  monopoly  of, 
attacked,  174. 

Edgar,  laws  of,  21. 

Education,  may  be  separate  for  dif- 
ferent races,  313 ;  tendency  of  to  be 
technical,  346;  usually  includes 
agricultural  instruction,  349;  state 
functions  of  declared  a  natural 
right,  349;  compulsory  in  all 
states,  349;  compulsory  age  of, 
350. 

Edward  I,  charter  of,  in  1297,  33;  re- 
stores constitutional  principle  of 
taxation,  33;  legislation  of,  49; 
grants  confirmation  of  charters,  94. 

Edward  the  Confessor,  codes  of,  17, 
21;  laws  of  (see  Wessex),  19; 
laws  of  sworn  to  be  observed  by 
Norman  kings,  24;  laws  of  re- 
stored by  Charter  of  Liberties,  27. 

Edward  II,  reign  of,  94. 

Edward  III,  legislation  of,  96. 

Edward  VI,  legislation  of,  82,  83. 

Edward  VII,  minimum  wage  legis- 
lation, 159,  213,  254. 

Egyptians  (see  Gypsies). 

Elections  (see  Voters),  freedom  of, 
principle  dates  from  statute  of 
Westminster  I,  47;  local  regula- 
tion of  essential,  47;  free  right  to, 
284;  house  the  judge  of,  285; 
right  of  voting,  285;  control  of 
votes  of  employees,  286;  Federal 


and  State  authority,  286,  287; 
regulation  of  machinery  of,  288; 
of  corruption  in,  290,  291. 

Electric  power  companies,  eminent 
domain  for,  131. 

Elevators,  subject  to  rate  regula- 
tion, 166;  hours  of  labor  on,  225. 

Elizabeth,  legislation  of,  82,  83. 

"Elkins"  act,  176  (see  Discrimina- 
tion, Trusts);  form  of,  361. 

Eminent  domain,  a  modern  doc- 
trine, 129;  applies  to  personal 
property,  129;  personal  property 
seized  by  royal  purveyors,  130; 
damages  in,  130;  does  not  exist 
in  England,  130;  growth  of  in 
United  States,  130;  public  service 
corporations  entitled  to,  130;  ex- 
tended to  public  service  corpora- 
tions, 130;  to  private  corporations, 
130;  to  the  taking  of  easements, 
130;  damages  given  for  land  dam- 
aged as  well  as  taken,  130;  only 
for  a  public  use,  130,  131;  na- 
tional uses,  131;  State  uses,  131; 
parks  and  playgrounds,  131;  rail- 
ways, telegraphs,  etc.,  131;  what 
is  a  public  use,  131;  under  State 
constitutions,  131;  increased  ap- 
plication of,  131;  water  subject 
to,  in  the  arid  States,  132;  powers 
of  Federal  government,  132;  no 
more  land  to  be  taken  than  needed, 
132. 

Employers'  liability,  235,  252. 

Employment  offices  (see  Intelligence 
Offices),  regulated  in  Oklahoma, 
etc.,  270. 

England,  statutes  of,  enforced  in 
United  States,  55;  New,  forbidden 
to  plant  tobacco,  115. 

Englishry,  London  free  from,  27,  28. 

English  language,  replaces  French, 
98;  to  be  used  in  law  courts,  102. 

English  law,  restoration  after  the 
conquest,  25. 

Engrossing  (see  Forestalling,  Re- 
straint of  Trade),  first  statute 
against,  53;  definition  of,  53;  of 
foreign  trade,  63;  punishment  of, 
63;  forbidden  to  the  merchants 
called  grocers,  102;  forms  forbid- 
den, 110;  final  definition  of,  101; 
of  corn  permitted  in  certain  cases, 
110;  of  butter  and  cheese  for- 
bidden, 112;  by  trusts,  173. 

Entail  created  by  statute  of  1284, 
92. 

Equality,  recognized  in  charter  of 
Henry  II,  28;  before  the  law  in 
Magna  Charta,  35;  guaranteed  by 
statute  of  Westminster  I,  49. 


374 


INDEX 


Equity  (see  Chancery,  Injunction), 
separate  from  law  in  some  States, 
298. 

Equity  jurisdiction  (see  also  Chan- 
cery), jealousy  of,  28;  its  inter- 
ference with  the  common  law  for- 
bidden by  statute  of,  1311,  96; 
in  abductions,  105;  separate  still, 
298. 

Eugenics,  modern  statutes  recog- 
nizing, 327. 

Evidence,  compulsory  in  trust  cases, 
188;  legislation  upon  (see  Incrim- 
inating Evidence),  299. 

Exclusive  contracts  forbidden  (see 
Trusts),  187. 

Executive  (see  also  King),  usurpa- 
tion of,  under  Henry  VIII,  82, 107. 

Exemption  laws  for  debtors,  152. 

Exile  (see  Banishment)  forbidden 
in  Magna  Charta,  34. 

Export,  taxes  on,  49. 

Exportation  of  wool  forbidden,  1337, 
102;  corn,  1360,  102;  iron,  102. 

Extortion  and  discrimination,  32;  un- 
lawful under  early  common  laws, 
52,  165;  rare  in  railway  rates  (see 
Elkins  Act),  170. 

Factory  legislation  (see  Hours  of  La- 
bor, Labor),  acts  exist  under  police 
power,  148;  as  to  married  women, 
etc.,  214;  the  factory  system,  pos- 
sible abolishment  of,  227;  hours 
of  labor  limited,  228;  the  factory 
acts,  235;  stores  and  dwellings, 
237. 

Fairs  (see  Markets). 

Farming  on  shares,  242. 

Farms,  labor  on,  no  regulation  of, 
228;  State,  frequently  created, 
348. 

Federal  and  State  jurisdiction,  ef- 
fects of,  283 ;  as  to  use  of  army, 
283;  question  as  to  prohibition 
laws,  340. 

Federal  government,  powers  of, 'in 
eminent  domain,  132. 

Federal  incorporation  (see  Corpora- 
tion, Trusts),  80, 179, 189;  effect  of, 
189,  202. 

Federal  troops  employed  by  Presi- 
dent Cleveland,  278. 

Federation  of  Labor  (see  Gompers, 
Samuel). 

Female  labor,  etc.  (see  Women). 

Ferries,  charges  of,  regulated,  164. 

Feudal  system,  imposition  of,  by 
Normans  in  England,  27. 

Feudal  tenures,  abolished  under 
Charles  I,  113;  in  United  States, 
130. 


Fines  must  be  reasonable,  principle 
dates  from  Westminster  I,  48. 

Fish  and  game  laws,  first  precedent  in 
1285,  92;  law  protecting  wild  fowl 
under  Henry  VIII,  108;  snaring 
of  birds  forbidden,  110. 

Fish,  destruction  of  to  enhance 
price  made  criminal  in  1357,  100; 
universally  regrated  in  American 
markets,  101;  may  not  be  carried 
out  of  England,  103. 

Flume  companies,  eminent  domain 
for,  131. 

Food  and  drugs  act  (see  Pure  Food 
Laws,  Trusts,  etc.),  100. 

Force  bills  (see  Elections),  286. 

Foreclosure  of  mortgages  regulated 
by  statute  in  United  States,  153. 

Forest  reserves  created  in  some 
States,  348. 

Forestalling  (see  Trusts,  Monopoly), 
first  statute  against,  53;  defini- 
tion of,  53,  109,  174;  offence  grad- 
ually lost  sight  of,  61 ;  laws  against, 
made  perpetual  under  Elizabeth, 
61;  only  repealed  under  George 
III,  61;  first  statute  merely  in- 
flicts punishment,  62;  full  stat- 
utory definition  of,  62;  in  the 
staple,  62;  next  statute  that  of 
1352,  applying  to  wine,  etc.,  or 
imports,  63;  double  forfeiture  im- 
posed, 63;  imprisonment  for  two 
years,  63;  in  cloths  abandoned, 
A.  D.  1350,  98;  of  Gascony  wines 
forbidden  in  1532,  99;  in  fish, 
milk,  etc.,  forbidden,  101;  last 
complete  act  A.  D.  1551,  109; 
made  perpetual  under  Elizabeth 
and  repealed  in  1772,  109;  final 
definition  of,  110;  an  element  of 
the  "Trust,"  173;  by  Joseph,  178; 
in  modern  statutes,  153. 

Forestry  laws,  the  first,  110. 

Form  of  our  statutes,  the,  353. 

Fornication,  made  a  crime,  328; 
with  a  woman  under  age  a  crime 
though  with  her  consent,  331. 

Fourteenth  Amendment,  securing 
private  property,  128. 

France,  English  people  not  subject 
to,  by  statute  of  1340,  97,  98. 

Franchises  (see  Corporations),  chal- 
lenged by  quo  warranto,  93;  rates 
of  may  be  regulated,  164;  to  be 
limited  in  time,  198;  to  pay  taxes, 
198;  regulation  of,  meaning  of, 
347. 

Frauds,  statute  of,  108,  152;  need 
of  legislation  against,  344. 

Fraudulent  conveyances,  statute 
against,  1571,  86,  149. 


INDEX 


375 


Free  speech  in  Parliament  finally  es- 
tablished under  Henry  VIII,  107. 

Freedom  in  England,  early  method 
of  attaining,  20;  of  American 
Indians  secured,  20  (see  Citizen- 
ship): before  the  law  recognized 
in  charter  of  Henry  II,  28. 

Freedom  of  contract  (see  Labor, 
Trade),  principle  of,  207,  209; 
value  of,  239;  of  elections,  254, 
255. 

Freedom  of  speech,  legislation  re- 
lating to,  301;  does  not  extend  to 
anarchistic  statements,  302. 

Freedom  of  the  press,  limitations  of, 
302;  meaning  of,  302. 

Freedom  of  trade,  33. 

Freehold  land,  common  in  United 
States,  130. 

Freemen  (see  Liberty),  made  up 
Witenagemot,  4;  rights  of  under 
Magna  Charta,  33,  34;  rapid  in- 
crease of  after  the  conquest,  47. 

French,  language,  first  law  in  A.  D. 
1266,  44;  customs  and  law  of  in 
force  in  England,  98;  language  not 
to  be  used  in  England,  98;  coat  of 
arms  not  to  be  used  in  England, 
98;  language  declared  to  be  un- 
known in  England  in  1360,  102. 

Fuel,  Assize  of,  109;  modern  statutes, 
municipal  distribution  of,  347. 

Fur,  black  only  to  be  worn  by  the 
king,  108. 

Futures  (see  Forestalling),  buying  of 
unlawful  at  common  law,  53,  64, 
148;  dealing  in  forbidden,  148; 
buying  and  selling,  154,  173. 

Fyrd,  the  early  Anglo-Saxon  militia, 
31,  272. 

Gambling,  contracts  forbidden  (see 
Futures),  154. 

Game  (see  Fish  and  Game). 

Gas   (see  Municipal  Socialism). 

Girls  (see  Women,  Labor,  Child  La- 
bor), protection  of,  225;  absolute 
prohibition  of  in  some  occupations, 
336,  337 ;  newspapers  may  not  be 
sold  by,  337;  may  not  be  tele- 
graph messengers,  337. 

Gold  (see  Silver). 

Golden  Rule,  applied  to  the  law  of 
combination,  266. 

Gompers,  Samuel,  quoted,  79,  186, 
302. 

Gospel,  society  for  the  foundation  of, 
founded,  115. 

"  Government  by  injunction"  (see  In- 
junction), 206. 

Government,  threefold  division  of, 
21;  none  above  law,  37;  powers  of 


in  militia,  278;  chapter  concern- 
ing, chapter  XIX;  general  princi- 
ple that  of  home  rule,  345:  by 
individual  heads,  346;  by  boards 
or  commissions,  346;  system  of 
taxation,  350. 

Grand  Army  of  the  Republic  given 
special  privileges,  315. 

"Granger"  cases,  laws,  etc.,  162, 
163. 

Gratuities  forbidden,  154. 

Great  Case  of  monopolies  cited, 
265. 

Grievances,  summary  of,  A.  D.  1309, 
94. 

Grosscup,  Judge,  on  Federal  in- 
corporation, 189. 

Guards,  private  (see  Pinkerton  Men), 
244. 

Guilds  (see  Trade  Unions),  freedom 
gained  in,  20;  meaning  of  word, 
20;  all  members  freemen  in  towns, 
47;  partly  lawful,  partly  unlaw- 
ful in  English  history,  67;  history 
of,  68;  became  combinations  of 
employers,  68;  their  control  of  all 
trades,  73;  abolished  by  French 
Revolution,  73;  monopolies  rec- 
ognized under  Elizabeth,  88;  get- 
ting charters  take  corporate  form, 
111;  may  have  suggested  the  cor- 
poration, 113;  growth  of  the  trade 
guilds,  115. 

Gypsies,  early  statutes  against,  81. 

Habeas  Corpus  act,  foreshadowed  in 
Magna  Charta,  37 ;  its  predecessor, 
writ  de  odio  et  atia,  92;  suspen- 
sion of,  by  Lincoln,  etc.,  276, 
278. 

Harvard,  John,  residence  in  South- 
wark,  105. 

Harvard  University,  recognized  in 
the  Massachusetts  Constitution, 
349. 

Hat-pins,  legislation  against,  106. 

Hawkins's,  definition  of  conspiracy 
in  pleas  of  the  crown,  266. 

Health  (see  Pure  Food  Laws,  Police 
Power). 

Henry  II,  laws  of,  28. 

Henry  IV,  legislation  of,  104,  105, 
106. 

Henry  VIII,  legislation  of,  81,  82; 
declares  God  created  all  men  free, 
107;  personal  government  under, 
108;  declares  himself  head  of  the 
church,  110,  111;  history  of  the 
Bloody  Statute,  111. 

Hepburn  act  (see  Rates),  167  (see 
Interstate  Commerce  Act). 

Hereditary  privilege  (see  Privilege). 


376 


INDEX 


Heresy,  first  secular  law  against, 
A.  D.  1400,  104;  the  bloody  stat- 
ute of  Henry  VIII  against,  108; 
the  statutes,  111. 

Heretics  to  be  tried  in  clerical  courts 
and  burned  if  guilty,  104. 

Herrneneutics,  meaning  of  word,  364. 

Herrings,  ordinance  of,  to  prevent 
waste  and  extortion,  100. 

Highways,  State,  exist  in  some 
States,  349. 

Hindoos  may  be  naturalized,  310. 

"Holding"  companies  (see  Corpora- 
tions). 

Holidays,  laws  concerning  in  early 
England,  70. 

Holt  cited  as  to  conspiracy,  265. 

Horses,  breeding  of  encouraged  by 
statute,  108;  to  be  over  fifteen 
hands,  108;  sale  of  forbidden,  108. 

Hotels  not  entitled  to  eminent  do- 
main, 132. 

Hours  of  labor,  first  fixed  in  1495, 
80;  fixed  again,  1514,  81;  re- 
pealed next  year  as  to  city  of  Lon- 
don, 81;  regulation  of  by  combi- 
nation forbidden,  83;  freedom  in, 
210;  modern  statutes,  213;  of 
women,  213,  215;  in  special  em- 
ployments, 214;  of  child  labor, 
215;  Federal  laws  concerning, 
215;  in  dangerous  trades,  215;  in 
factories,  effect  of  on  male  labor, 
219;  attitude  of  the  courts,  217; 
laws  regulating  labor  of  adult 
males,  217;  of  women,  218;  in 
special  occupations,  218;  of  chil- 
dren, 219,  220;  night  work,  220; 
general  discussion,  221;  child 
labor  prohibited,  221,  222;  age 
limit,  222;  school  certificates,  etc., 
223,  224;  educational  restrictions, 
224;  mines,  225;  dangerous  or  im- 
moral occupations,  225,  226,  228; 
railroads  and  telegraph,  226;  un- 
sanitary trades,  227,  228;  foreign 
legislation,  228,  229. 

House  of  Commons,  has  sole  power 
of  taxation,  134;  growth  of  legis- 
lative power  (see  Parliament),  9 
16,  17,  22,  24. 

House  of  Lords,  abolished  1648, 115. 

"  House  of  Mirth  "  at  Albany,  287. 

Husband  and  wife,  may  testify 
against  each  other,  299;  con- 
tracts between  may  be  regulated, 
319;  in  divorce  matters,  319; 
right  to  guardianship  of  children, 
319;  husband  is  head  of  the  family, 
319;  may  fix  the  abode,  319; 
power  of  mother  over  children, 
328;  duty  of  the  husband  to  sup- 


port the  wife  and  children,  329; 
they  are  joint  guardians  of  chil- 
dren, 329;  may  "be  witnesses 
against  each  other,  329. 

Ice,  Massachusetts  convention  to 
regulate  price  of,  156. 

Immigration,  restriction  of  by  act  of 
Congress,  303. 

Immorality  made  a  crime,  339. 

Immunity,  principle  of  discussed 
(see  Incriminating  Evidence),  304. 

Impeachment,  revival  of,  process 
for,  in  1621,  89. 

Imports  (see  Duties). 

Imprisonment  for  debt,  in  the  law 
merchant,  91;  forbidden  in  United 
States,  152. 

Improvements  (see  Internal  Im- 
provements.") 

Income  tax,  history  of,  127,  136;  in 
England,  137,  138;  may  be 
graded,  138. 

Incriminating  evidence,  principle 
protecting  a  man  from  self-incrim- 
ination,  304;  of  corporations,  305. 

Indeterminate  sentences,  339. 

Indexes  (see  Statutes),  should  be 
some  system  of,  359,  360. 

Indians,  American,  legislation  re- 
ferring to,  under  Cromwell,  115; 
citizenship,  20;  history  of  legis- 
lation concerning,  308. 

Individual  rights,  legislation  relating 
to,  chapter  concerning,  chapter 
XV. 

Individualism,  definition  of,  125;  in 
labor  matters,  227,  230. 

Industrial  Commission,  United 
States,  report  of  on  trusts,  etc.,  189. 

Inheritance  taxes,  in  United  States, 
138;  in  England,  139. 

Initiative  (see  also  Referendum),  122, 
294,  296. 

Injunction  (see  Riots),  origin  of  in 
Jack  Cade's  Rebellion,  74;  early 
use  of  principle,  A.  D.  1327,  74; 
justices  of  the  peace  instituted 
for,  74;  under  Richard  II,  74; 
repeal  of  these  powers  given  jus- 
tices of  the  peace  the  very  next 
year,  74;  the  common  law  vindi- 
cated, 75;  power  given  to  chan- 
cellor in  Jack  Cade's  case,  79; 
jealousy  of  common  law  still  pre- 
served, 79;  given  against  the  se- 
duction of  heiresses,  105;  in  labor 
disputes,  206,  284;  (see  also 
Chancery,  Equity  Jurisdiction), 
government  by,  may  bring  on 
military  abuses,  283;  misuse  of 
in  America,  299. 


INDEX 


377 


Injury,  to  another  when  not  criminal 
usually  not  a  legal  wrong,  60; 
otherwise,  i£»by  two  or  more  work- 
ing together,  60;  to  trade,  ex- 
amples of,  60. 

Inns  and  ale  houses,  tippling  at,  for- 
bidden under  King  James,  111, 
112. 

Inquisition,  constitutional  principle 
against,  304. 

Insane  persons  have  no  right  to 
marriage,  327. 

Insolvency  laws,  liberal  in  United 
States,  152  (see  Bankruptcy). 

Instrument  of  government  under 
Cromwell,  112;  only  lasted  one 
Parliament,  113;  dissolved  by 
Cromwell's  soldiers  at  its  first  sit- 
ting, 113. 

Insurance  funds,  legislation  against, 
238;  compulsory  and  benefit  funds, 
238  (see  Life  Insurance). 

Intent,  a  cardinal  question  in  con- 
spiracy questions,  55;  a  test  of 
the  legality  of  combined  action,  264. 

Internal  improvements,  States  may 
not  engage  in,  etc.,  133;  chapter 
concerning,  chapter  XIX;  usually 
prohibited  by  State  Constitution, 
348;  taxation  to  aid,  351,  352. 

Interstate  commerce,  regulation  of 
acts  in,  167;  by  the  commission 
167;  the  Sherman  act,  167;  cor- 
porations uncontrollable  by  States, 
194 ;  bearing  of  law  on  trusts,  189; 
denied  convict-made  goods,  302; 
does  not  control  the  treatment  of 
races  in  public  conveyances,  312; 
in  intoxicating  liquors,  340;  act, 
discussion  of  its  form,  361. 

Interstate  succession,  151. 

Intimidation  (see  Conspiracy,  Boy- 
cotts), 59,  243;  in  elections,  287. 

Intoxicating  liquor,  may  not  be  sold 
to  minors,  etc.,  332;  tendency  to 
local  option,  340;  interstate  com- 
merce act  regarding,  340;  general 
discusssion,  342;  high  license,  342; 
State-wide  prohibition,  342. 

Intoxication  (see  Drunkenness),  for- 
merly made  a  crime,  339. 

"Iowa  Idea,"  the,  63. 

Ipswich  (see  Norwich),  tailors  of, 
case  cited,  265. 

Ireland,  cruel  laws  of  Edward  III, 
101. 

Irish,  termed  the  enemies  of  the 
English  in  1309,  101;  laws  against, 
105 

Irishmen,  banished  from  England, 
105;  not  to  attend  the  University 
of  Oxford,  105. 


Iron,  export  of  forbidden  in   1354, 

102. 
Irrigation,  eminent  domain  for,  131; 

private,  eminent  domain  for,  132; 

districts  created  in  the  South,  348. 

James  I,  legislation  of,  108;  against 
sin,  112. 

Japanese  (see  Mongolian),  included 
in  laws  against,  309. 

Jefferson,  Thomas,  his  work  on  Vir- 
ginia bill  of  rights,  280. 

Jenks,  Professor  (Oxon),  quoted,  120. 

Jews,  and  usury,  40;  source  of 
revenue  in  England,  41;  ex- 
cluded from  benefit  of  statute 
merchant,  91;  trade  of,  in  early 
England,  93;  Christians  forbidden 
to  live  among  them,  96;  exempt 
from  taxation  except  to  the  king, 
96. 

John,  King,  surrenders  England  to 
the  Pope,  31. 

Judge-made  law,  criticisms  of,  122, 
123. 

Judges,  method  of  appointment, 
changes  in,  298. 

Judicial  power,  jealousy  of,  23;  sys- 
tem, 298;  present  needs,  344. 

Juries,  early  regulation  of  by  statute, 
91;  by  1285  must  be  of  twelve 
men,  92;  compulsory  service  of 
jurors  dates  from  1285,  92;  right 
to,  how  far  preserved,  299;  may 
be  less  than  twelve  in  criminal 
cases,  341;  three-fourths  verdict 
unconstitutional,  342. 

Jury  trial  in  contempt  of  court  mat- 
ters, 344. 

Juvenile  courts,  statutes  for,  340; 
laws,  343; 

Keller  vs.  U.  S.,  213;  U.  S.f  138;  case 
cited,  303. 

Kent,  laws  and  customs  of,  96. 

Kidnapping,  made  a  crime,  332; 
laws  against,  344. 

King,  might  not  make  law,  4;  Nor- 
man kings  attempting  to  make  the 
law,  11;  derived  his  revenue  from 
his  own  land,  12;  early  methods  of 
securing  money  from  Parliament, 
13;  sovereignty  of  supreme  over 
the  church,  29;  power  of  to  repeal 
laws  of  England  asserted  by  Henry 
VIII,  82;  proclamation  made  by 
to  be  obeyed  by  act  of  1539,  82; 
may  not  leave  the  realm,  95;  proc- 
lamations of  given  the  force  of 
law  in  1539,  107;  subject  to  com- 
mon law,  110. 

Kodaks,  legislation  against,  301. 


378 


INDEX 


Labor,  general  chapter  concerning, 
chapter  XI,  early  English  law  of, 
39,  52;  makes  men  free,  47; 
statutes  of,  64;  early  problems  in 
England,  66;  compulsory  in  early 
England,  69,  76;  attempt  to 
make  it  so  in  the  South,  68;  right 
to  early  established  in  England, 
71;  still  regulated,  83;  freedom 
of  by  statute  of  1548,  83;  handi- 
craftsmen to  use  only  one  mys- 
tery in  1360,  102;  claims  for 
preferred,  152;  combinations, 
chapter  concerning,  chapter  XII, 
contracts  of  labor  not  enforceable, 
205;  American  statutes,  chapter 
XI ;  New  York  legislation,  amend- 
ment, 212;  length  of  service,  213; 
freedom  of  trade  and  labor,  207, 
244;  hours  of  in  peculiar  trades, 
226;  in  Europe,  238;  foreign  legis- 
lation, 252;  legality  of  combina- 
tions, 265  (see  Public  Work, 
Wages,  etc.). 

Labor,  hours  of  (see  Hours  of  La- 
bor). 

Labor  laws  (see  Hours  of  Labor, 
Factories),  early  English  statutes 
relating  to,  chapter  IV;  closely 
connected  with  laws  against  trusts, 
56;  twenty  years  of  legislation, 
247. 

Labor  Unions  (see  Trades  Unions), 
exemption  from  anti-trust  laws, 
181;  agreement  not  to  join  not  to 
be  required,  270;  lawful  in  Eu- 
rope, 273;  funds  of  to  be  pro- 
tected from  attack,  274;  desire  to 
be  exempt  from  militia  service, 
281;  hostile  to  militia,  283;  may 
not  establish  a  privileged  caste, 
315;  generally  exclude  negroes, 
313. 

Laborers,  first  statute  of  1349,  64, 
158;  possibly  never  law,  65;  con- 
firmed in  1364  and  not  repealed 
until  1869,  66;  re-enacted  in  1360, 
67;  never  law  in  America,  67; 
great  statute  of,  1562,  69;  statute 
of  1388,  69,  75;  requiring  testi- 
monials, 75;  statute  of  1402,  for- 
bids laborers  to  be  hired  by  the 
week,  77;  statute  of,  re-enacted 
in  1405,  77;  statute  of  Elizabeth, 
1562,  84;  statute  of,  extended  to 
London  city,  100;  confirmed 
under  James  I,  111;  fixed  prices 
of  victuals,  158,  159;  laborers  not 
to  be  imported  into  State  of 
Oklahoma,  271. 

Laissez  faire  school  (see  Individual- 
ism), 126. 


Land,  system  of  tenure  before  the 
conquest,  27;  allodial  in  United 
States,  130;  subject  to  eminent  do- 
main, 131. 

Lassalle,  doctrine  of,  anticipated,  110; 
ideas  of,  inmodern  socialism,  127. 

Lateran  council,  abolishes  trial  by 
ordeal,  31. 

Laundries,  regulation  of,  etc.,  225. 

Law,  English  idea  of,  chapter  con- 
cerning, chapter  I,  definition  of, 
2;  American  notion  of,  15;  Anglo- 
Saxon  idea  of,  3;  originally  in 
England  unwritten,  6;  law  en- 
forced, each  man  for  himself,  6; 
supposed  to  be  known  by  all,  6; 
growth  of  among  children,  6 ;  sanc- 
tion of,  7 ;  notion  of  as  an  order  of 
a  sovereign  to  a  subject,  7 ;  Roman 
notion  of  not  understood,  7;  un- 
written in  early  England,  7; 
Austinian  notion  of,  quite  modern 
in  England,  6;  sanction  of,  not 
necessarily  punishment,  7;  early 
English  all  customary,  9;  always 
made  by  the  people  under  Teu- 
tonic ideas,  10;  English  not  codi- 
fied, 18;  right  to,  recognized  in 
Magna  Charta,  33,  34;  of  the  land, 
as  expressed  in  Magna  Charta,  34; 
extended  to  all  people,  47;  right 
to  as  against  military  law,  275,278; 
form  of  American  statutes,  354. 

Law  merchant,  history  of,  99;  gov- 
erns all  persons  coming  to  the 
staple,  99. 

Law  reports  continuous  among  the 
English  people  since  1305,  94. 

Laws  (see  Statutes),  not  made  by 
early  Parliaments,  but  only  de- 
clared, 3;  "We  are  unwilling  to 
change  the  laws  of  England,"  40. 

Lawyers  may  not  sit  in  Parliament, 
103. 

Legislation  (see  also  Statutes),  Ameri- 
can in  general,  chapter  concerning, 
chapter  VI,  proper  field  of,  2; 
makes  the  bulk  of  modern  law, 
2;  not  supposed  to  be  difficult,  3; 
none  in  modern  sense  before  the 
Norman  conquest,  10;  early 
growth  of  in  England,  13;  be- 
ginning of  new  legislation,  14; 
sociological  only  considered,  16; 
State,  15;  our  subject,  16;  early 
necessity  of,  17;  Anglo-Saxon,  17; 
early  English  laws  recognized  order 
law,  23;  form  of  in  England,  24; 
apt  to  cease  under  personal  gov- 
ernment, 107;  American  in  gen- 
eral, 117;  of  the  British  Empire, 
index  to,  118,  124;  growth  of  con- 


INDEX 


379 


structive  legislation  in  America, 
118;  radical  tendency  of,  119,  120; 
to  enact  unconstitutional  laws, 
121;  division  of  into  subjects,  124; 
method  of  in  United  States,  292; 
form  of,  discussed  in  chapter  XX; 
should  not  be  delegated  to  com- 
missions, 358;  final  discussion, 
363;  no  book  upon  the  contents 
of,  364. 

Legislatures  (see  also  Parliament), 
history  of,  3 ;  to  make  new  laws  a 
modern  conception,  4;  origin  of 
representative,  5;  early,  included 
all  fighting  men,  5;  annual  ses- 
sions, history  of,  95;  biennial  or 
quadrennial  sessions  of,  95,  117; 
moral  cowardice  of,  121;  modern 
distrust  of,  121,  290;  sessions  of 
limited,  291. 

Legitimacy,  common  law  as  to, 
38. 

Lent,  observation  of,  required  by 
statute  of  James  I,  111. 

Levees  on  the  Mississippi,  348. 

Liability  (see  Corporation). 

Libel,  and  slander,  legislation  relat- 
ing to,  301;  against  government, 
303;  modern  statute  abolishing 
law,  342. 

Liberties,  charter  of  (see  Charter),  de- 
clared by  early  statutes,  10;  res- 
toration of  in  England,  13;  per- 
sonal, secured  by  writs  de  odio  et 
alia  and  habeas  corpus,  92. 

"  Liberty  Clause,"  the  great,  35. 

Liberty  (see  also  Personal  Liberty, 
Life  and  Liberty,  etc.),  right  to, 
recognized  in  Magna  Charta,  33; 
special  to  Kentishmen,  96;  in 
labor  matters,  71;  of  trade,  207. 

Licensing  of  trade,  laws  concerning, 
156. 

Life,  liberty,  and  property  (see  Con- 
stitutional Law),  makes  a  con- 
venient division  of  legislation, 
125;  identity  of  constitutional 
rights  to,  125. 

Life  insurance,  must  be  given  the 
negro  on  the  same  terms  as  the 
white,  314;  of  children  forbidden, 
332. 

Lilleshall  case  cited,  268. 

Limitations,  statute  of,  for  prose- 
cutions for  crime,  dates  from 
1509,  107. 

Limited  liability  (see  Corporation). 

Liquor  (see  Prohibition),  interstate 
commerce  in,  146;  (see  Intoxicat- 
ing Liquor). 

Litigation,  early,  always  by  way  of 
justification,  6. 


Lobbying,  laws  against  (see  Bribery), 
286;  acts,  287. 

Local  option  (see  Intoxicating  Liq- 
uor). 

Local  self-government  preserved  in 
municipal  law,  345. 

London  dock  case,  164. 

London,  liberties  and  customs  of 
recognized  in  Magna  Charta,  32; 
laws  of  relating  to  labor,  84;  stat- 
ute of,  customs  of,  1285,  92. 

"Long  and  short  haul  clause"  (see 
Rates),  170. 

Looms,  engrossing  forbidden,  110. 

Loss  of  service  laws,  241. 

Ludlow  Company,  strike  at,  237. 

Lynching,  State  or  county  liable  for, 
280;  civil  damages  for,  283;  law 
of,  340. 

Machine  politics,  entrenched  by 
regulation  of,  289,  290. 

Magna  Charta,  chapter  concerning, 
chapter  II,  marks  the  complete 
restoration  of  Anglo-Saxon  liber- 
ties, 14;  sworn  to  in  the  corona- 
tion oath,  24;  taxation  clause, 
25;  history  of  the  grants  of  by 
King  John,  31;  of  Henry  III  omits 
taxation  clauses,  25;  confirmed 
more  than  thirty  times  by  later 
kings,  32;  history  of  the  grant  of 
by  Henry  III,  32;  important 
clauses  of,  32;  of  John  further 
discussed,  92;  to  be  read  twice  a 
year  in  every  cathedral,  94;  to  be 
interpreted  in  the  courts  as  is  the 
American  Constitution,  under  the 
new  ordinances  of  1311,  94;  never 
published  in  French,  277;  causes 
of,  277. 

Maintenance,  statutes  against,  277. 

Majority,  powers  of,  not  unlimited, 
304. 

Malice  in  conspiracy  (see  Conspir- 
acy), 57. 

Manufacture  of  cloth  regulated  by 
statute,  110. 

Margins,  sales  on  forbidden,  148. 

Marine  law  (see  Sea). 

Market  towns,  regulation  of  tolls  in, 
52. 

Markets,  citizens  of  London  for- 
bidden to  trade  in,  79. 

Marlborough,  statute  of,  45. 

Marriage  (see  also  Miscegenation), 
jurisdiction  over  first  in  church, 
29;  is  a  sacrament  by  Roman 
view,  30,  38;  creates  a  status,  38; 
not  a  mere  contract  at  common 
law,  38;  forbidden  between  Eng- 
lish and  Irish,  101,  102;  religious 


380 


INDEX 


ceremony  first  dispensed  with 
under  Cromwell,  111;  between 
first  cousins  invalid  in  Pennsyl- 
vania, 144;  modern  legislation, 
209;  may  be  forbidden  to  parties 
of  different  races,  313;  discus- 
sion of  the  common-law  marriage, 
320;  now  abolished  in  New  York, 
320;  the  ceremony,  320;  chapter 
concerning,  chapter  XVII,  law- 
fulness of,  determined  by  law  of 
State,  324;  law  of  formerly  ap- 
pertained to  the  church,  324;  in 
some  States  a  simple  contract, 
325;  when  void  because  of  age, 
326;  when  void  because  of  failure 
of  parents  to  consent,  restriction 
of  by  modern  statute,  327;  be- 
tween near  relations,  327;  of  in- 
sane persons  void,  327;  of  impo- 
tent persons,  327;  of  epileptics, 
327;  of  drunkards,  327;  State 
examination  to  permit,  328;  tu- 
berculosis disqualification  for,  328; 
of  consumptives  forbidden,  328; 
of  unchaste  persons  forbidden, 
328;  medical  examinations  may 
be  required,  331;  common-law 
marriage  abolished  in  Illinois,  332. 

Marriage  and  divorce,  chapter  re- 
lating to,  chapter  XVII,  as  re- 
lated to  women's  rights  question, 
326. 

Married  women,  regulation  of  labor 
of,  218,  221;  original  laws,  229; 
have  same  property  rights  as  men, 
317;  may  be  protected  by  the 
State,  317;  as  by  hours  of  labor 
law,  317;  have  control  of  sepa- 
rate property,  328;  laws  permit- 
ting them  to  act  as  sole  traders. 
328;  wife-beating  made  criminal, 
331;  privileges  of,  331. 

Martial  law,  276;  struggle  against 
in  England,  279;  recognition  of, 
in  modern  State  legislation,  280; 
definition  of,  280;  habeas  corpus 
suspended  under  martial  law,  280; 
only  by  the  executive,  280. 

Martin  vs.  Mott,  12  Wheaton,  19, 
case  of  cited,  275. 

Massachusetts,  business  corpora- 
tions act,  165,  198;  body  of 
liberties,  327. 

Material  men  (see  Labor). 

Meats,  servants  to  eat  more  than 
once  a  day,  102. 

Mechanics'  liens,  legislation  concern- 
ing, 158. 

Mercantile  system,  recognized  in  the 
statutes  of  the  early  fourteenth 
century,  97. 


Mercenary  soldiers,  first  employed 
against  Jack  Cade,  278. 

Merchant  adventurers,  incorporated 
in  1565,  110;  charter  of,  23. 

Merchant  tailors'  case,  68. 

Merchant  (see  Statute). 

Merchants  (see  Trade),  rights  of 
under  Magna  Charta,  35;  rijhts 
of  in  England  early  recognized,  71 ; 
liberties  of  reaffirmed  in  statute  of 
York,  77;  free  to  come  and  move 
in  England,  96;  freedom  of  in 
England  by  statute  of  York,  96; 
liberties  of  in  statute  of  1340,  97; 
safety  of  in  England  guarded  by 
legislation,  99;  having  goods  to 
the  value  of  five  hundred  pounds 
may  dress  like  gentlemen,  103; 
may  freely  trade  in  England  and 
carry  goods  out  of  the  realm,  103; 
may  ship  in  foreign  ships,  104. 

Meyer,  Dr.  Hugo  R.,  quoted,  162. 

Middlemen  (see  Regrating),  nearly  all 
regraters,  101;  laws  against,  109; 
forbidden  by  law  of  King  James, 
112;  modern  statutes  aimed  at, 
156;  need  of  legislation  against, 
344. 

Military  law  (chapter  relating  to, 
chapter  XIII),  does  not  exist 
under  English  ideas,  36;  com- 
plained of  in  petition  of  right,  279. 

Military  service,  chapter  concerning, 
chapter  XIII;  early  objections  to, 
31;  law  of,  277;  done  away  with 
in  England,  278;  should  be  sub- 
ordinated to  civil  power,  279. 

Militia,  the  natural  defence  of  a  free 
State,  30;  power  of,  to  enter 
houses,  etc.,  275;  to  suppress  riot, 
276;  a  proper  defence,  etc.,  279; 
companies  not  under  government 
control  unlawful,  282  (see  Po- 
litical). 

Militia  law,  new  acts  concerning, 
280;  exemption  of  labor  unions 
from,  281. 

Milk  universally  forestalled  and  re- 
grated  in  American  markets,  101. 

Mills,  tolls  of,  always  regulated,  166. 

Mines,  labor  in,  hours,  etc.,  225, 
228;  company  stores,  237. 

Minimum  wage  laws  (see  Wages). 

Mining  companies  may  have  emi- 
nent domain,  131. 

Minor  vs.  Happersett,  21  Wallace, 
126,  case  cited,  317. 

Miscegenation,  made  unlawful  by 
custom,  7;  may  be  forbidden  by 
statute,  313. 

Mobs  (see  Riots),  mob  laws,  chapter 
concerning,  chapter  XIII;  preven- 


INDEX 


381 


tion  of  by  recent  statute,  280; 
counties  or  cities  liable  for 
damage,  280;  damages  by,  con- 
sidered in  Pittsburg  riots,  282; 
modern  statute  against,  340. 

Monasteries,  first  suppressed  1535, 
82;  dissolution  by  Henry  VIII, 
108. 

Money,  statute  of,  96;  forbidden  to 
be  carried  abroad  in  1335,  96. 

Money  bills,  the  province  of  the 
lower  house,  23. 

Mongolians,  legislation  against,  308, 
309. 

Monopolies,  abuse  of,  first  appears 
in  statute  of  1514,  86;  growth  of, 
87;  statute  of,  88;  growth  of  feel- 
ing against  under  Elizabeth  and 
James,  108;  great  case  of,  174. 

Monopoly  (see  Trusts),  doctrine  fore- 
shadowed in  Magna  Charta,  34; 
principle  of,  makes  combination 
unlawful,  61;  still  our  common 
law,  62;  first  formal  complaint  by 
the  commons,  1571,  86;  history 
of  agitation  against,  87;  statute 
of  1623,  87;  under  Charles  I,  89; 
early  legislation  in  the  interest  of 
the  consumer,  87;  staples  tending 
to  abolished,  96;  of  foreign  trade 
frequently  granted  by  Elizabeth, 
110;  statute  of,  112;  frequently 
if  not  usually  given  in  franchises 
to  corporations,  114;  no  objec- 
tion to  in  foreign  trade,  114;  cor- 
porations invented  to  gain,  115; 
general  discussion  of,  chapter  IX; 
rates  of,  may  be  regulated,  163; 
test  of  unlawful  monopoly,  181; 
in  trust  cases,  184;  of  corpora- 
tions, 190;  how  far  to  be  per- 
mitted, 263. 

Mormonism  (see  Polygamy),  not 
permitted  by  the  Constitution, 
306;  agreement  to  abolish  not 
binding  on  the  State,  307. 

Mortgages  (see  Foreclosure),  fore- 
closure of,  difficult  in  United  States, 
152;  modern  legislation  in  United 
States  impairs  security  of,  153. 

Municipal  government  (see  Govern- 
ment), tendency  of,  346. 

Municipal  socialism,  modern  ten- 
dency, 346;  tendency  to  decrease, 
347;  of  street  railways  uncon- 
stitutional, 347;  of  telephone  lines 
permitted,  347;  of  gas,  water,  oil, 
tramways,  etc.,  347;  of  coal  yards, 
unconstitutional,  347;  of  any 
public  utility  in  Missouri,  347. 

Municipal  trading  (see  Socialism), 
127;  elections,  205. 


Munn  vs.  Illinois.  94  U.  S.,  113,  cas« 

cited,  163. 
Murder,  trial  of  clerks  for,  45;   civil 

damages  for,  282. 
Mutiny  Act  in  England,  275,  278. 

Nationalism  (see  Socialism),  127. 

Natural  rights  (see  Liberty,  Freedom, 
etc.). 

Naturalization  of  socialists,  etc.,  128; 
of  aliens,  Mongolians,  negroes,  etc. 
(see  titles). 

Negotiable,  meaning  of  word,  149; 
what  documents  are,  149;  modern 
legislation  increasing  number  of, 
150,  151;  uniform  act,  148. 

Negroes,  our  treatment  of  in  the  past, 
308;  Africans  may  be  citizens,  309; 
general  analysis  of  legislation,  310; 
their  political  and  social  relations, 
311;  inlabor,  313;  sexual  relation, 
313;  in  criminal  law,  313;  their 
property  rights,  314;  in  life-in- 
surance matters,  314;  their  treat- 
ment in  hotels,  jails,  etc.,  314; 
their  disfranchisement  in  the 
South,  314;  a  misdemeanor  in 
South  Carolina  to  serve  meals  to 
blacks  and  whites  in  the  same 
room,  314. 

Negro  labor  (see  Peonage),  239,  242; 
suffrage,  286. 

New  ordinance  of  Edward  II  en- 
acted 1311,  revoked  1322,  94. 

Newspapers,  legislation  of,  relief 
from  libel  law,  301. 

New  York,  constitutional  amend- 
ment concerning  public  work,  161, 
212. 

Nomination,  direct,  288;  papers,  289. 

Norman  law,  substantially  Roman, 
11;  law  brought  to  England  by 
the  Normans,  11. 

Normans,  their  notion  of  law,  11;  of 
sovereignty,  21;  murder  of  (see 
Englishry),  28. 

Northampton,  statute  of,  75,  96. 

Northern  Securities  case,  193,  U.  S. 
177,  177. 

Norwich  tailors,  case  of,  cited,  174. 

Nuisances  (see  Police  Power),  modern 
legislation  declaring,  154;  recent 
statutes  against.  340. 

Nurses,  trained,  may  be  privileged, 
341. 

Nursing  of  children  by  Irish  nurses 
forbidden,  101. 

Oath  (see  Religious  Tests). 
Obstruction  of  mails  and  interstate 

commerce,  283. 
Ocean  (see  Sea). 


382 


INDEX 


Oklahoma,  labor  legislation  of  dis- 
cussed, 270,  272;  capital  of  must 
not  be  removed  under  enabling 
act,  272. 

Old-age  pensions,  German,  238,  253. 

Oleomargarine,  legislation  concern- 
ing, 147. 

Onslow,  Speaker,  tells  Elizabeth 
that  she  is  subject  to  the  common 
law,  110. 

Oppression  (see  Conspiracy,  Boy- 
cott), antiquity  of,  264. 

Ordeal,  trial  by  abolished  by  Lateran 
Council,  31. 

Ordinance  (see  New  Ordinance)  of  a 
city,  343. 

Oregon,  the  effect  of  the  initiative  in, 
295. 

Organized  labor  (see  Labor  Unions), 
283. 

Osteopaths,  laws  concerning,  148; 
statutes  permitting  practice  of, 
307. 

Outlawry  (see  Unwritten  Law),  early 
method  of  enforcing  law,  6;  re- 
sult of  personal  enforcement  of 
law  when  mistaken,  8. 

Output,  limitations  of,  unlawful 
(see  Restraint  of  Trade,  Trusts), 
183. 

Parent  and  child,  early  control  of, 
by  church,  39. 

Parents  (see  Husband  and  Wife). 

Parks  (see  Eminent  Domain). 

Parliament  (see  also  Legislature), 
early  function  purely  judicial,  9; 
retains  the  right  to  tax,  12;  early 
history  of,  its  attempt  to  recover 
legislative  power,  12;  the  source 
of  supply,  12,  13;  judicial  power 
of,  23;  taxation  powers  of,  23; 
origin  of,  27;  word  not  used  in 
Magna  Charta,  33;  first  represent- 
ed in,  42;  word  first  used  in  1275, 
46;  first  "model"  sat  in  1295,  93; 
to  be  held  once  or  twice  in  the 
year  A.  D.  1311,  95;  must  be  an- 
nual, 95,  102;  claims  the  right  to 
ratify  treaties,  105;  to  be  con- 
sulted on  war,  105;  rarely  sum- 
moned under  Henry  VIII,  107; 
the  Barebones,  112;  single  cham- 
ber under  Cromwell,  113;  the 
rump,  113;  (see  House  of  Com- 
mons), 134. 

Parole  (see  Crime),  339;  new  laws 
concerning,  343. 

Patents  (see  Monopolies)  regulated 
by  statute  of  monopoly,  88. 

Paupers  (see  Poor  Laws),  110. 

Peachy 's  monopoly  case,  174. 


Peers  (see  House  of  Lords)  may  not 
speak  in  elections,  285. 

Penology,  principles  of,  343. 

Pensions,  by  way  of  exemption  from 
taxation,  139;  vast  increase  of  in 
United  States,  281;  to  Confeder- 
ate soldiers,  282;  discussion  of, 
315. 

Peonage  laws,  etc.,  239,  241;  cases, 
241,  311. 

Ferrers,  Alice,  legislated  against,  103; 
women  may  not  be  lawyers,  103. 

Personal  government  under  Henry 
VIII,  107;  struggle  for,  107. 

Personal  liberty,  Anglo-Saxon  idea 
of,  3;  English  idea  of,  10;  recog- 
nized in  Magna  Charta,  33;  in 
labor  contracts,  207. 

Personal  property  (see  Property). 

Personal  rights,  chapter  relating  to, 
chapter  XVI. 

Petition  of  the  Commons  to  Parlia- 
ment not  received,  94. 

Petition  of  Right,  its  bearing  upon 
standing  armies,  etc.,  279;  right 
to,  284. 

Petrie,  Flinders,  quoted,  327. 

Philadelphia  railway  strike,  284. 

Philip  and  Mary,  legislation  of,  110. 

Photographs,  legislation  to  prevent, 
301. 

Physicians,  may  be  compelled  to 
testify,  330;  privilege  of,  341. 

Picketing,  statute  against,  243;  in 
modern  English  legislation,  267; 
by  modern  American  statutes,  269. 

"Piece  work,"  work  by  contract, 
first  permitted  by  a  statute  of 
1360,  67. 

Pinkerton  men,  laws  against,  243, 
244;  armed  guards  forbidden  in 
Oklahoma,  274;  armed  guards 
permitted  in  Europe,  273;  legis- 
lation against,  282. 

Pins  must  be  double  headed  and 
have  the  heads  fast  soldered, 
108. 

Pittsburg,  riots  in,  282. 

Plague  (see  Black  Death). 

Players  (see  Actors). 

Police  power,  as  controlling  prop- 
erty, 129;  legislation  concerning, 
140,  144;  definition  of,  141;  in- 
creased legislation  in,  141;  growth 
of  boards  and  commissions,  141; 
definition  of  by  Shaw,  C.  J.,  142; 
history  of,  142;  extends  to  offen- 
sive trades,  smells,  or  sounds  but 
not  sights,  142;  as  to  sweatshops, 
tenements,  142;  no  limit  to,  143; 
legislation  based  on  moral  rea- 
sons, 143;  sanitary  laws,  143; 


INDEX 


383 


for  safety  of  public,  144;  as  to 
nuisances,  153;  prohibition  of 
self-regardant  acts,  144,  145; 
pure  food  laws,  145;  factory  acts, 
etc.,  148;  chapter  concerning, 
chapter  XVIII. 

Police  protection,  guaranteed  by  lia- 
bility of  the  hundred  or  county, 
92,  93;  the  power,  141;  modern 
extension  of,  143. 

Political  rights,  chapter  concerning, 
chapter  XIV,  as  to  militia  duties, 
244;  interference  with,  270. 

Polygamy  not  guaranteed  by  the 
right  to  free  religion,  306. 

Pooling  of  bids  in  public  work  un- 
lawful, 187. 

Pools,  unlawful  (see  Trusts},  182. 

Poor  laws,  first  origin  in  England, 
A.  D.  1388,  69,  86;  of  Elizabeth, 
110. 

Poor,  support  of,  in  towns  where 
born,  1388,  76;  support  of,  the 
duty  of  the  State,  69. 

Pope,  powers  of  in  England,  29; 
authority  of  extinguished  in  Eng- 
land, 1535,  82;  referred  to  as 
Bishop  of  Rome,  90;  may  no 
longer  appoint  bishops,  108; 
Henry  VIII  becomes  head  of  the 
church  A.  D.  1534,  110,  111; 
forbids  attendance  at  English 
church  A.  D.  1566,  111. 

Popular  assemblies  originally  in- 
cluded all  fighting  men,  4. 

Popular  legislation  under  Cromwell, 
112. 

Precedent,  the  true  value  of,  123. 

President,  proclamations  as  to  tariff, 
constitutionality  of  discussed,  64; 
the  commander-in-chief  of  the 
army,  278. 

Press  (see  Freedom  of  Press), 

Presser  vs.  Illinois,  116  U.  S.  252, 
case  cited,  282. 

Price,  prices  (see  Tolls,  Wages,  etc.), 
the  fixing  of,  43;  early  regulation 
of,  158;  fixing  of  by  combination 
early  unlawful  except  when  ap- 
proved by  chancellor,  70;  fixing  of 
tried  and  abandoned  in  the  early 
Middle  Ages,  73;  regulation  of 
definitely  abandoned,  1389,  76; 
selling  at  unreasonable  profit  for- 
bidden, 83;  iron  regulated,  100; 
of  poultry  fixed  in  1363  by  reason 
of  the  great  dearth,  102;  regula- 
tion of  generally,  chapter  IX,  fix- 
ing of  unlawful,  modern  statutes, 
156,  182;  older  statutes,  284. 

Price  of  bread,  44,  158. 

Primaries,  direct,  etc.,  288. 


Primogeniture  abolished  in  United 
States,  151. 

Privacy,  right  to  vindicated  under 
police  power,  143;  right  to,  301. 

Private  armed  guards  (see  Pinker- 
ton  Men),  prohibited,  282. 

Private  property  (see  Property),  so- 
cialists' attack  on,  25. 

Privilege  (see  Class  Legislation), 
given  by  recent  legislation  to  cer- 
tain classes,  315;  of  physicians, 
etc.,  in  giving  evidence,  330,  331. 

Probate  (see  Administration),  juris- 
diction of  in  courts,  29. 

Probation  (see  Crime). 

Procedure,  legislation  concerning, 
300;  in  the  courts,  339. 

Professions,  examinations  for,  147. 

Profit-sharing,  miscellaneous  mat- 
ters, etc.,  245,  255. 

Prohibition  laws,  effects  of,  146; 
movement  for  discussed,  208; 
laws  made  self-regardant  actions 
a  crime,  30  (see  Intoxicating 
Liquors);  tendency  to  State-wide, 
340,  342. 

Property,  private,  6;  growth  of 
among  children,  6;  descent  of, 
25;  personal  recognition  of  in  early 
English  statutes,  25;  exists  only 
by  the  law,  25;  real,  preceded  per- 
sonal property,  26;  personal, 
early  protection  of,  26;  rights  of 
as  recognized  in  Magna  Charta, 
33;  qualifications  A.  D.  1430,  105; 
American  legislation  concerning, 
chapter  VII,  rights  of  simple,  125: 
rights  to,  125;  a  constitutional 
right,  127;  not  a  natural  right, 
128;  the  creature  of  law,  128; 
rights  to  recognized  in  Magna 
Charta,  127;  in  American  con- 
stitutions, 127;  word  first  used  in 
Virginia  Bill  of  Rights,  127;  nat- 
ural right  to,  128;  recognized  in 
State  constitutions,  128;  attacks 
upon  by  legislation,  129;  personal 
taxation  of,  136. 

Protection  (see  Tariff). 

Protector,  power  of,  exceeded  the 
king's,  112. 

Protective  tariff  (see  Tariff),  35. 

Public  administrators,  abuse  of, 
91. 

Public  domain,  chapter  concerning, 
chapter  XIX. 

"Public  Interest"  (see  Granger 
Cases,  Rates),  163. 

Public  service  corporations,  rates 
may  be  regulated,  162,  164;  dis- 
tinguished from  other  corporations 
in  modern  statutes,  165,  203. 


384 


INDEX 


Public  work  (see  Wages),  definition 
of,  160. 

Pullman  Company,  strike  at,  237. 

Punishment  (see  Fines),  must  not  be 
cruel  or  unusual,  48;  reform  in, 
339. 

Pure-food  laws,  first  example  of  in 
Assize  of  Bread  and  Beer  A.  D. 
1266,  53,  62;  applying  to  grain, 
meat,  fish,  62;  selling  unwhole- 
some meat  severely  punishable  in 
early  England,  93;  American  laws 
124;  history  of,  145;  in  States, 
145;  matters  to  which  they  apply, 
145;  effect  of,  157;  history  of ,  340; 
the  Federal  act,  340; 

Pure  food  and  drug  laws,  their  crim- 
inal side,  147. 

Purple  the  color  of  royalty,  108. 

Purveyors  (see  Supplies),  royal, 
might  seize  property,  130. 

Quid  emplores,  statute  of,  93. 
Quo  warranto,  statute  of,  1289,  93. 

Race  legislation  as  to  labor,  290; 
question,  311. 

Racial  rights,  chapter  concerning, 
chapter  XVI,  question  on  labor 
matters,  313. 

Railroads  (see  Rates),  steam,  bonds 
for  voted  by  cities,  counties,  etc., 
135;  interstate  commerce  power 
over  rates,  167;  hours  of  labor  on, 
226. 

Railways,  street,  abutters'  consent 
necessary  for  franchise,  199. 

Rape,  made  criminal  at  common  law 
by  statute  Westminster  I,  48; 
made  a  capital  offence  in  1285,  92; 
penalty  made  death  in  the  South 
as  at  common  law,  333;  rigor  of 
the  common  law  preserved,  344. 

Rates  (see  Extortion,  Discrimination), 
must  be  reasonable  at  common 
law,  52;  of  public  service  com- 
panies must  be  uniform,  52,  53; 
regulation  of  generally,  chapter 
VIII,  of  railways,  162;  "granger" 
laws,  162,  163;  by  State  commis- 
sions, 162;  clash  between  State 
and  Federal  governments,  169; 
what  are  reasonable,  169;  of  gas, 
water,  light  companies,  etc.,  170; 
need  not  be  uniform,  170;  modern 
examples  of,  171;  reason  for  regu- 
lation of,  163;  in  foreign  coun- 
tries, 172;  railway  rate  act  of 
1910,  171;  the  long  and  short 
haul  clause,  171. 

Raw  material,  laws  against  export 
of,  common  in  England,  112. 


Real  property,  real  estate  (see 
Property). 

Recall,  the,  a  new  reform,  297. 

Recommendations,  of  servants,  etc. 
(see  Black  List),  have  early  origin 
in  England,  69. 

Referendum  (see  Initiative),  modern 
movement  for,  121,  294;  in  case  of 
franchise,  347. 

Reform,  movements  of,  in  nineteenth 
century,  209. 

Regrating  (see  Forestalling,  Middle 
Men),  first  statute  against,  53;  def- 
inition of,  53;  of  fish  and  wool 
forbidden  under  Henry  VIII,  108; 
of  butter  and  cheese  forbidden 
under  Edward  VI,  109;  of  coal 
forbidden,  109;  final  definition  of, 
110;  in  early  Greece  by  trusts, 
173;  especially  obnoxious  in  early 
England,  156. 

Religion,  religious  liberty  guaran- 
teed first  under  Cromwell,  except 
as  to  papists,  113;  of  Jesus  Christ 
furthered,  115. 

Religious  tests,  299;  rights  under 
American  Constitution,  306;  as  to 
instruction  in  public  schools,  306; 
as  to  taxation,  306. 

Rents  in  staple  towns  must  be  rea- 
sonable, 99. 

Reporters,  newspaper,  privilege  of, 
341. 

Representative  government,  and  the 
right  to  law,  3;  origin  of,  3;  pecu- 
liar to  Anglo-Saxon  people,  3; 
origin  of,  in  England,  5;  in 
America,  121;  distrust  of,  290. 

Republican  form  of  government, 
304. 

Reputation,  right  to,  301. 

Restraint  of  trade  (see  Forestalling, 
Trusts,  Monopoly),  general,  dis- 
cussion chapter  IX,  doctrine  of 
foreshadowed  in  Magna  Charta, 
33;  origin  of  doctrine,  53;  in- 
stance of,  60,  61;  still  our  com- 
mon law,  62;  expression  first  used 
in  1436,  70;  double  damages  for, 
recognized  in  statute  of  York,  96; 
an  element  of  "Trusts,"  173; 
under  the  Sherman  act,  181;  the 
Massachusetts  statute,  188. 

Retail  (see  Wholesale). 

Retailing  by  countrymen  forbidden 
in  towns  by  statute  of  Philip, 
110. 

Retainers,  feudal,  laws  against, 
278. 

Revenue  bills  (see  also  Money  Bills), 
23;  must  originate  in  lower  house, 
A.  D.  1407,  105. 


INDEX 


385 


Revenue  officers  may  not  meddle 
with  the  goods  of  travellers  under 
pain  of  quadruple  damages  and 
imprisonment,  100. 

Revisions,  need  of  authorized,  354. 

Rex  vs.  Crispe,  monopoly  case,  195. 

Richard  I  imposes  taxes  to  pay  for 
crusade,  31. 

Richard  II,  legislation  of,  104;  all 
his  laws  declared  to  be  perma- 
nent, 104;  their  repeal  declared 
to  be  high  treason,  104;  the  fol- 
lowing year  they  were  all  repealed 
under  Henry  IV,  104. 

Right  to  privacy  (see  Privacy). 

Rights,  indefinite,  125. 

Riotous  assemblies,  laws  against, 
284. 

Riots  (see  Injunctions),  law  against 
under  Henry  V,  77;  suppression 
of  by  common-law  courts  in 
chancery,  77;  use  of  executive 
power  to  suppress,  dates  from 
1414,  77;  use  of  chancery  power 
permitted,  77;  law  of  1495,  79; 
punishment  of  by  Star  Chamber, 
79;  act  of  Edward  VI,  82,  83; 
counties  liable  for  damages  in  1285, 
84;  European  law  of,  273;  Star 
Chamber's  authority  over,  284; 
duty  of  by-standers,  280,  281. 

Rivers,  pollution  of,  regulated  as 
early  as  Henry  VIII,  108. 

Roads  (see  Internal  Improvements). 

Roman  law,  distinct  in  two  great 
principles  from  English  law,  10; 
individual  liberty  and  law-making 
by  the  sovereign,  10;  an  order  to 
the  subject,  10;  protest  of  barons 
against,  A.  D.  1383,  104;  forbid- 
den to  be  cited  in  the  courts,  104. 

Rome,  Church  of  (see  Church,  Canon 
Law,  Pope),  high-water  mark  of 
domination  over  England  in  1213, 
31. 

Sack  (see  Wine). 

Sacraments,     jurisdiction    over    in 

church  alone,  29. 

Sales  in  bulk  prohibited,  148,  151. 
Sales,  uniform  law  of,  157;   sales  at 

less  than  cost  forbidden,  187,  188. 
San  Francisco  earthquake,   martial 

law  in,  276. 

Saxon  (see  Anglo-Saxon). 
Schools,  to  be  no  religious  instruc- 
tion in,  306;    appropriations  may 

be  divided,  306. 
Scotchmen  banished  from  England, 

105. 
Scots  to  depart  realm  within  forty 

days,  106. 


Scott,  Laura,  her  report  upon  child 
labor,  336. 

Scutage,  the  beginning  of  taxation, 
31;  tax  or  money  paid  in  lieu  fur- 
nishing men-at-arms,  13,  27;  re- 
placed military  service,  31,  134. 

Sea,  navigation  of,  free  to  all  English, 
98  (see  Monopoly). 

Seamen,  imprisonment  of,  statute 
against  under  Cromwell,  115. 

Search,  right  of,  denied,  303. 

Seduction,  injunction  issued  against, 
106:  of  service,  241;  action  for, 
331. 

Segregation  of  races,  306;  of  sects, 
306. 

Senators,  United  States,  direct  elec- 
tion of,  291. 

Separation,  legal,  330  (see  Divorce); 
may  exist  without  divorce,  330; 
of  the  powers  (see  Three  Functions 
of  Government). 

Serfs  (see  Villeins). 

Servants,  regulation  of  in  early  Eng- 
land, 65;  laws  affecting  in  early 
England,  had  to  give  notice,  etc., 
74,  78;  regulation  of  food  and 
clothing,  102. 

Sewerage  (see  Drains). 

Sex  legislation,  chapter  concerning, 
chapter  XVII,  limitations  in  in- 
dustry, 318;  relations  formerly 
the  province  of  the  church,  325. 

Sexual  questions  (see  Woman's 
Rights,  Married  Women,  etc.), 
offences  made  secular  crimes,  48. 

Sherman  act  (see  Trusts),  precedent 
in  statute  of  monopoly,  88;  en- 
acted 1890,  176;  meaning  of ,  181; 
still  uncertain,  365. 

Ships,  principle  restricting  merchants 
to  domestic  ships  very  old,  104. 

Shirts  may  not  be  "pinched,"  108. 

Shoes,  long  pikes  to,  forbidden,  106. 

Signs  (see  Trades),  public,  may  not  be 
regulated  under  police  power,  142. 

Silver,  payment  in,  may  not  be  re- 
fused, 105. 

"Single  standard"  and  free  divorce, 
326. 

Sins,  the  province  of  the  church 
courts,  29;  distinction  of  from 
crime,  30;  legislation  against 
common  under  James  I,  111. 

Slander,  made  criminal  act  at  com- 
mon law  by  Westminster  I,  48; 
and  libel,  legislation  relating  to, 
301;  of  women  made  a  crime,  328. 

Slavery,  in  England,  18;  distinction 
between,  and  labor,  206,  228;  thir- 
teenth amendment  is  self-execut- 
ing, 311. 


386 


INDEX 


Smoke,  laws  against,  154. 

Socage,  free  and  common,  abolished 
in  United  States,  130. 

Socialism  (see  Anarchism,  Individual- 
ism), allowable,  definition  of, 
127;  those  professing  may  not 
be  naturalized,  128;  is  it  compati- 
ble with  a  republican  form  of  gov- 
ernment, 129;  helped  by  wom- 
en's suffrage  movement,  326; 
municipal,  347. 

Socialists,  may  be  denied  immigra- 
tion, 303. 

Society,  possible  systems  of,  de- 
scribed, 125,  126. 

Soldiers  and  sailors  (see  Pensions), 
to  be  treated  free,  341. 

Southwark,  inhabitants  of,  declared 
to  be  thieves,  men  and  women, 
105. 

Sovereign,  the  king  under  Norman 
ideas,  11,  12. 

Sovereignty,  in  the  legislature,  11; 
in  Parliament,  22. 

Spain,  war  veterans  of,  pensions, 
etc.  281. 

Spanish  war  (see  Veterans  of). 

Special  courts  declared  odious,  345. 

Specific  performance  of  labor  con- 
tracts, 205. 

Speech  (see  Free  Speech). 

Spence  quoted,  79. 

Stage  players  (see  Actors). 

Stamford,  statute  of,  94. 

Standard  Oil  Trust,  175,  184;  legal- 
ity of,  263. 

Standard  wage  (see  Wages),  princi- 
ple gives  place  to  modern  principle 
of  living  wage,  66. 

Standing  armies,  origin  of,  13; 
early  objections  to,  31,  280;  for- 
bidden in  Bill  of  Rights,  279;  first 
established  in  England  under 
Charles  II,  278. 

Staple  (see  Forestalling),  definition 
of,  63,  98;  abolished  beyond  the 
seas,  96;  generally  abolished  in 
1340,  97;  last  statute  of  1353,  99; 
extends  to  wool,  leather,  hides, 
and  lead,  99;  statute  of  re-enacted 
in  1354,  100. 

Star  Chamber  (see  Chancery,  Riots) 
abolished  under  Charles  I,  113. 

State  aid,  to  railroads,  135;  to  in- 
dustries, 351;  present  questions, 
352. 

State  and  Federal  questions  (see 
Centralization ) . 

State  legislation,  early  increase  of, 
119;  the  Constitution,  120. 

State  regulation  of  rates  (see  Rates), 
162,  168. 


State,  general  powers  of,  133;  may 
not  engage  in  any  internal  im- 
provements or  industry,  133; 
rights  and  powers  of  as  to  corpora- 
tions, 196. 

State  socialism,  whether  compatible 
with  the  Constitution,  128. 

Statute  (see  Statutes,  Common  Law), 
modern  notion  of,  2;  earliest 
social,  25;  why  more  democratic 
than  the  common  law,  122.  (For 
special  statutes,  see  their  titles.) 

Statute,  law,  modern  importance  of, 
3. 

Statute  merchant,  1285,  90. 

Statutes,  the  subject  of  this  book, 
2;  are  comparatively  recent,  3; 
making  law  a  new  discovery,  4; 
declare  the  law,  4;  importance  of 
in  modern  times,  16;  our  study 
sociological,  16;  early  nature  of, 
16;  early  English,  what  are  in 
force  in  the  United  States,  55; 
began  to  be  in  English  A.  D.  1463, 
106;  when  should  be  unconsti- 
tutional, 121;  limitations  upon 
individualism,  125;  proper  classi- 
fication of,  124;  form  of,  353; 
no  authenticated  revision  usually, 
353;  present  functions,  354,  355; 
method  of  enacting,  356;  many 
laws  of  doubtful  authority,  356: 
lack  of  official  publication,  357; 
need  of  scientific  draftsmen,  357; 
reforms  recommended,  357,  358; 
indexing  and  arrangement,  358; 
final  discussion  of  the  system  of 
statute-making,  363;  difficulty  of 
interpreting,  365;  their  general 
uncertainty,  365. 

Statutes  of  the  realm,  the  earliest 
sociological  statute  about  1100.  25. 

Stevenson,  G.  T.,  quoted,  312. 

Stock  certificates,  not  negotiable, 
150. 

Stock  Exchange,  rules  of,  customary 
law,  8. 

Street  Railways  (see  Municipal  So- 
cialism). 

Streets,  use  of,  by  railways  subject  to 
vote  of  abutters,  132. 

Strikes  (see  also  Conspiracy),  early 
law  of,  67;  once  unlawful  in  Eng- 
land, 61,  68,  284;  never  unlawful 
in  America,  67;  modern  statutes 
concerning,  267;  European  law 
of,  268;  illegal  under  a  lawful 
wage,  211;  participation  of  em- 
ployees in,  269;  notice  of  by  em- 
ployers required  in  modern  stat- 
utes, 269;  lawful  in  France,  273; 
use  of  Federal  courts  in,  283. 


INDEX 


387 


Stubbs,  on  early  English  legislation, 
17. 

Succession  taxes,  history  of,  138; 
common  now  in  all  States,  138; 
Federal  tax  repealed,  138;  may  be 
graded,  139. 

Succession  (see  Interstate). 

Suffrage  (see  Women's  Suffrage, 
Elections),  qualifications  for,  285; 
reforms  in,  294;  disqualification 
of  public  servants,  294;  "grand- 
father clause,"  311;  property  and 
qualification  legislation,  311. 

Sugar  Trust  cases,  180. 

Sumptuary  laws,  in  early  England, 
43,  44;  statute  de  cibariis,  44; 
courses  at  dinner  regulated  by 
law,  53;  diet  and  apparel,  102; 
statute  of  A.  D.  1463,  prescribing 
apparel,  106;  women  not  to  wear 
hose  to  the  value  of  more  than 
fourteen  pence,  106. 

Sunday  laws,  tendency  to  abolish, 
340;  barbers  may  not  shave  on 
Sunday,  343. 

Supplies,  seizure  by  the  king  for- 
bidden, 94. 

Sweatshop,  definition  of,  230;  laws 
regulating,  230;  bakeries,  cigar, 
clothing,  artificial  flowers,  etc., 
trades  principally  regulated,  231; 
laws  concerning,  232. 

Taff  Vale  case,  legislation  against, 
268,  274. 

Taft,  railway  rate  bill,  168,  171; 
court  of  commerce  criticised,  345; 
Federal  incorporation,  189,  200; 
judicial  reforms,  344. 

Tail  (see  Entail). 

Tariff,  constitutional  objection  to, 
134;  increased  cost  to  the  people 
recognized  by  statute  of  1309,  94. 

Tariff  laws,  effect  upon  engrossing 
and  monopoly,  63;  early  history 
of,  134. 

Taxation  (see  Taxes),  origin  of  in 
England,  12;  must  be  by  com- 
mon consent,  25;  general  taxa- 
tion first,  in  Saladin  tithe,  31; 
must  be  for  common  benefit,  25, 
33,  34;  for  public  purposes,  33; 
first  taxation  on  personal  prop- 
erty in  1188,  31;  by  common 
consent  omitted  from  later  char- 
ters, 133;  principle  of  consent  re- 
stored in  confirmation  of  charters, 
93;  a  usual  method  of  invading 
property  rights,  129;  never  di- 
rect in  England,  134;  history  of, 
134;  exemption  from  as  to  certain 
industries,  135;  possibly  uncon- 


stitutional, 135;  extent  of  in  the 
United  States,  135;  laws  limit- 
ing tax  rate.  136;  must  be  pro- 
portional under  State  constitu- 
tions, 137;  burden  of  in  United 
States,  136;  double  taxation, 
138;  graduated  taxation,  138; 
commissions  to  study,  140;  as  a 
function  of  government,  350; 
final  discussion  of,  350,  351; 
graded  taxation,  351;  income 
inheritance  tax,  351;  principles 
of  taxation,  351;  bounties,  351. 

Taxation  without  representation,  25; 
the  earliest  constitutional  princi- 
ple, 25. 

Taxes  (see  Betterment  Taxes),  early, 
in  England  paid  by  furnishing 
men-at-arms,  13;  later  trans- 
formed into  scutage,  a  money 
taxation,  13;  first  voted  by  Parlia- 
ment, 23;  heavy  taxes  upon  per- 
sonal property  under  Henry  VII, 
106,  107;  amount  of  frequently 
limited  by  modern  statute,  136; 
income  taxes,  138;  assessment 
and  collection  of  in  America,  137; 
legislation  concerning,  137;  in- 
heritance taxes,  138;  on  trades 
and  callings,  139;  license  common 
in  South,  139;  betterment,  reason 
for,  140;  double  taxation,  140; 
rate  of  limited  by  statute,  346; 
limited  by  law  in  South  and  West, 
347. 

Telegraph,  hours  of  labor  in,  226. 

Tenures  (see  Land). 

Thames,  preservation  of,  108. 

Theatrical  employment  of  children, 
etc.,  226. 

Threefold  necessity,  the,  12. 

Three  functions  of  government, 
origin  of,  5;  American  co-opera- 
tion of  powers,  21,  22,  64;  does 
not  exist  in  England,  22;  in  the 
States,  121. 

Tips  (see  Commissions),  forbidden, 
154,  244;  laws  against,  341. 

Tobacco  (see  Sumptuary  Legislation), 
forbidden  to  plant  in  England  un- 
der Cromwell,  115. 

Tolls  (see  Rates),  must  be  reasonable 
under  Magna  Charta,  35;  under 
statute  Westminster  I,  164. 

Towns,  citizens  of,  first  represented 
in  Parliament  of  1264,  42  (see 
Government). 

Townsend,    Meredith,    quoted,    240. 

"Trade  Boards  Act"  of  Edward  VII, 
254. 

Trades  (see  Restraint  of,  Freedom 
of),  withdrawing  one's  self  from 


388 


INDEX 


(see  Boycott,  Conspiracy),  lawful 
in  individuals  but  not  in  combina- 
tions, 57;  right  to  early  establish- 
ed in  England,  70;  made  gener- 
ally free  under  Elizabeth,  83; 
freedom  of  extends  to  the  Jews, 
96;  in  more  than  one  commodity 
forbidden  A.  D.  1360,  102;  law 
repealed  the  following  year,  103; 
freedom  of  triumphantly  estab- 
lished in  fourteenth  century,  103; 
restrictions  begin  to  disappear 
under  Elizabeth,  108;  license  for 
necessary  in  many  States,  154, 
155;  Trade  Disputes  Act,  the  Eng- 
lish, 1906,  267,  268  (see  Conspir- 
acy); trade  guilds  (see  Guilds) 
recognized  in  modern  German 
legislation,  273;  licenses  for  may 
be  required,  339. 

Trades,  men  forbidden  to  use  more 
than  one,  77  (see  Signs);  license 
taxes  for,  147;  examination  for, 
147  (see  Taxation). 

Trades-unions,  once  unlawful  in 
England,  61;  never  unlawful  in 
America,  67;  early  law  of,  69; 
punishment  for  joining,  82;  early 
combinations  of  forbidden,  83; 
convictions  for  joining,  83;  Euro- 
pean law  of,  267 ;  Norwich  tailors' 
case,  174;  condition  not  to  join 
made  unlawful,  243. 

Trading  corporations,  the  first,  110. 

Trading  stamps,  use  of,  forbidden, 
148. 

Transfers  of  stock,  laws  regulating, 
150. 

Travel,  right  to,  34. 

Treason,  344. 

Trial  by  jury,  origin  of,  28;  by  bat- 
tle, 28;  by  compurgation,  28. 

Truant  laws,  337,  349,  350. 

Trust  certificate,  unlawful,  182,  185, 
187. 

Trust  receipts,  laws  of,  151. 

Trusts  (see  Conspiracy,  Monopoly), 
chapter  concerning,  chapter  IX; 
origin  of  common  law  making  them 
unlawful,  156;  at  common  law, 
179;  early  English  statutes  relat- 
ing to,  179;  laws  against  always 
connected  with  laws  directed 
against  combinations  of  labor,  56; 
punishment  of  by  removal  of  tar- 
iff laws,  63;  taxation  on  franchise 
of,  63;  American  statutes  against 
unnecessary  except  to  apply  com- 
mon-law principles  to  interstate 
commerce,  72;  and  labor  combi- 
nations, 83;  earliest  use  of  word, 
175;  invention  of,  175;  earliest 


State  legislation,  176;  the  Sher- 
man act,  176,  365;  Federal  su- 
pervision, 177;  State  laws  against, 
177;  exemption  of  laborers  and 
agricultural  products,  181;  as 
affected  by  corporation  laws,  179, 
180;  early  combinations  in  Athens, 
156;  coal,  milk,  etc.,  157;  ques- 
tion of  intent,  264;  modern  legis- 
lation largely  unnecessary,  175; 
voting  trusts,  175;  legislation 
against  in  1890,  179;  review  of 
modern  legislation,  181;  defini- 
tions of  the  trust,  183;  State  stat- 
utes, 181-187;  may  not  enforce 
contracts  or  collect  debts,  184, 
185;  recent  laws  more  intelligent, 
185;  constitutional  provisions 
against,  185,  186;  volume  of  legis- 
lation, 186,  188;  the  problem  ana- 
lyzed, 188,  189;  history  and 
summary,  203. 

Tyler,  Watt,  rising  of,  69. 

Tyndale's  translation  of  the  Bible 
under  Henry  VIII,  108. 

Unconstitutional  laws  (see  Consti- 
tution), tendency  to  enact,  121; 
true  reason  for,  121. 

"Unfair  competition,"  modern  legis- 
lation against,  175,  183,  188; 
definition  of,  174. 

Unfair  list,  the  right  to  publish,  dis- 
cussed, 302. 

Uniform  law,  commissioners  on, 
157. 

Uniform  laws,  already  recommended, 
148;  as  to  bills  and  notes,  148, 
155;  weights  and  measures,  148, 
155. 

Uniformity  of  law,  work  of  commis- 
sioners, 148,  155. 

Union  labor  (see  Trades-Unions), 
207;  no  condition  to  be  made 
concerning,  243;  discrimination 
against,  246;  special  privileges  of 
in  legislation,  269. 

United  States  Industrial  Commis- 
sion, report  on  trusts,  189. 

United  States  senators,  direct  elec- 
tion of,  291. 

Universities,  State,  exist  in  nearly  all 
States,  349. 

Vagabonds,  early  statutes  against, 
81;  and  Idlers,  82;  punishment  of 
rogues  and  sturdy  beggars,  86; 
severe  statutes  against  under 
Elizabeth,  110. 

Vessels  (see  Ships). 

Veterans,  of  the  Spanish  war,  to  be 
preferred  in  civil  service  in  Eng- 


INDEX 


389 


land  under  Cromwell,  115;  in  the 
United  States,  115;  preference 
legislation,  116. 

Victuals,  statute  of  (see  Assize  of 
Bread),  53. 

Villeinage,  finally  abolished  for 
money  compensation,  69;  laws 
mentioned  under  Elizabeth,  67, 
70. 

Villeins,  in  early  England  had  no 
property,  13;  early  condition  of, 
47 ;  made  free  when  they  seek 
refuge  in  towns,  70;  manumitted 
by  Henry  VIII,  107. 

Vote,  right  of  employees  to,  in  mod- 
ern statutes,  270. 

Voters,  qualifications  of,  105;  prop- 
erty qualifications  under  Crom- 
well 113  (see  Suffrage). 

Wages,  early  regulation  of,  91;  high- 
est in  early  England,  64;  fixed  by 
the  statute  of  laborers,  65;  must 
be  at  customary  rate  in  early  Eng- 
land, 66;  standard  fixed,  69;  fixed 
semi-annually  in  England,  70; 
repeated  demands  to  fix  by  law 
and  continued  punishment  of 
extortion,  70;  rates  of  fixed  in 
New  York,  73;  litigation  caused 
by  such  legislation,  73;  rate  of 
again  fixed  in  1388,  76;  attempt 
to  regulate  by  law  again  aban- 
doned, 1427,  77;  maximum  price 
again  fixed  in  1444,  78;  again 
fixed,  1495,  78;  most  elaborate 
fixing,  1514,  81;  in  New  Zealand 
and  Austria,  159;  in  England, 
160;  in  New  York,  Indiana,  etc., 
160,  210;  in  public  work,  161; 
fixed  by  town  vote,  161;  mini- 
mum wage  in  Hawaii,  161;  Ne- 
braska and  Nevada,  162;  for- 
bidden by  Louisiana  Constitution, 
162,  211;  claims  for  preferred  in 
insolvency,  etc.,  210;  wage  legis- 
lation in  modern  times,  210;  in 
towns  by  vote,  210;  of  public 
labor,  211;  New  York  amend- 
ment, 212;  fixed  by  modern 
statutes  in  England,  New  Zealand, 
etc.,  210;  Plymouth  case,  211; 
effect  of  minimum  wage  laws,  211; 
time  and  manner  of  payment,  236, 
237  (see  Minimum  Wage). 

Wales,  joined  to  England,  82;  stat- 
ute of,  91. 

War  amendments  and  their  effects, 
310. 

Warehouse  receipts  negotiable,  150. 

Warrants,  general,  may  not  be  em- 
ployed (see  Search,  Right  of),  304. 


Watch,  duties  of,  92. 

Water  (see  Municipal  Socialism), 
public  control  of  in  arid  States, 
131. 

Weavers,  statute  for  relief  of,  110. 

Weights  and  measures,  early  laws 
regulating,  44;  standard  required 
by  statute  of  York  A.  D.  1392,  77; 
American  legislation,  154. 

Welshmen  banished  from  England, 
105. 

Were,  meaning  of,  18. 

Were  gild,  prototype  of  modern 
lynching  laws,  283. 

Wessex,  early  laws  of,  18. 

Westminster  I,  first  statute  of,  47, 
90. 

Westminster  III,  statute  of  quia 
emptores,  95. 

Wharves,  charges  regulated  in  early 
times,  165. 

Wheat,  price  of,  regulated,  Athens, 
173. 

Whistles,  laws  against,  154. 

Whitaker,  Dr.  F.  E.,  on  Athenian 
corn  laws,  158. 

Wholesale  and  retail  selling  recog- 
nized as  lawful,  but  not  forestall- 
ing, 99. 

Wight,  Isle  of,  to  be  repeopled  with 
English  people,  106. 

Wilgus,  Horace  L.,  on  Federal  in- 
corporation, 189. 

William  the  conqueror,  charter  to 
the  City  of  London,  24. 

Wills,  statute  of,  108. 

Winchester,  statute  of,  92. 

Wine,  or  beer,  use  of  never  regulated 
by  sumptuary  legislation,  103; 
sweet  white  wine  not  to  be  sold  at 
retail,  104;  sweet  wine  (Spanish?) 
must  be  sold  at  the  same  price  as 
the  wine  of  the  Rhine  and  Gas- 
cony,  104. 

Witchcraft,  first  act  against  under 
Henry  VIII,  108;  forbidden  by 
statute  of  James  I,  111. 

Witenagemot  (see  also  Council),  in- 
cluded originally  all  freemen  in 
England,  4;  main  function  of  ju- 
dicial legislation,  6;  little  known 
of  in  early  times,  9 ;  functions  of,  as 
a  court,  9. 

Witnesses,  number  of,  limited  in 
criminal  cases,  341. 

Wolstonecraft,  Mary,  her  book  dis- 
cussed, 336. 

Women,  may  not  practice  law,  103; 
forbidden  to  read  New  Testament, 
108;  might  be  hanged  in  early 
England  when  men  could  plead 
benefit  of  clergy,  112;  suffrage 


390 


INDEX 


movement,  origin  of,  119;  prog- 
ress, 119;  laws  limiting  labor  of, 
218,  221;  may  not  stand,  226; 
not  sell  liquor,  226;  nor  ply  street 
trades,  226;  constitutional  right 
to  labor,  229;  sale  of  liquor  to 
forbidden,  330;  industrial  em- 
ployment of,  333;  legislation  to 
protect  in  industrial  matters,  336; 
their  health  may  be  protected  by 
statute,  336;  may  not  work  in 
factories  shortly  after  child-birth, 
336,  337;  effort  to  forbid  married 
women  from  working  in  factories 
at  all,  336;  statutes  on  employ- 
ment of  in  industry,  338,  339; 
teachers  to  be  paid  the  same 
as  men  337,  338  (see  Married 
Women). 

Women's  suffrage  (see  Women),  re- 
cent progress  in,  293;  by  prop- 
erty owners,  etc.,  294;  results  of 
discussed,  321;  tendency  of  move- 
ment to  socialism,  326;  votes  on 
matters  of  finance  permitted  in 
some  States,  329;  constitutional 
amendments  continually  defeated, 
329;  subsidence  of  agitation  over, 
331;  the  right  of  property  owners 
to  vote  in  money  elections,  332. 

Women's  rights,  discussed  in  chap- 
ter XVII;  in  all  respects  citizens 
except  for  voting,  holding  office, 
and  compulsory  service  on  jury 


or  in  the  army,  317;  may  not  serve 
liquor  or  engage  in  immoral  occu- 
pations, 317;  may  be  subject  to 
protective  legislation  even  when 
over  twenty-one,  318;  hours  of 
labor  may  be  regulated  by  law, 
318;  in  property  matters  same  as 
men,  318;  with  certain  special 
privileges,  318;  political  rights. 
321;  to  hold  office,  321;  female 
juries,  321;  in  educational  mat- 
ters, 321;  may  practice  law,  328; 
may  practice  medicine,  329;  in 
jails,  etc.,  330;  are  not  liable  for 
husband's  debts,  338;  female 
labor  in  England  and  United 
States,  337. 

Wool,  early  duties  on,  49;  regula- 
tion of  trade  in,  49;  numerous 
statutes  referring  to,  97;  may  not 
be  carried  out  of  England,  97; 
no  clothing  made  out  of  England 
to  be  worn,  97;  trade  in  made 
free  again,  98;  again  made  a  felony 
to  export,  99. 

Woolsey  does  not  summon  Parlia- 
ment for  seven  years,  107. 

Wrecks,  definition  of  by  statute  of 
Westminster  I,  49,  50;  the  law  of, 
50;  to  be  restored  to  their  owners 
on  payment  of  salvage,  99. 

Year  Books  begin  in  1305,  94. 
York,  statute  of,  77,  96. 


OF  THE 

UNIVERSITY 

OF 


By  FREDERIC  JESUP  STIMSON 

THE 
AMERICAN    CONSTITUTION 

The  National  Powers,  the  Rights  of  the  States, 
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CHARLES  SCRffiNER'S  SONS  NEW  YORK 


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